As predicted by anti-corruption activists, Ukraine did not select a new anti-corruption prosecutor chief on 21 December. The selection committee convened and announced the results of the contest, yet did not vote to approve the results.
Klymenko is the clear winner of the contest for anti-corruption prosecutor chief
Oleksandr Klymenko, a detective of the National Anti-Corruption Bureau (NABU), won the contest to head the Special Anti-Corruption Prosecutor’s Office (SAPO) with 246 points. The runner-up, a prosecutor of the Prosecutor General’s Office Andriy Synkuk, got 229 points. This was expected: it was already clear on 10 December that Klymenko, who is leading an investigation into possible corruption violations of Oleg Tatarov, deputy head of the President’s Office, was the winner. And that is why, as Ukraine’s Anti-Corruption Action Center (ANTAC) had been consistently warning, that the President’s Office had been attempting to disrupt the competition.
Earlier in December, ANTAC warned that the President’s Office would try to falsify the competition. Then, ANTAC stated that the delay of the commission’s next convocation until 21 December is likely to be caused by an attempt to disrupt the selection by buying time for a loyal court to intervene. And indeed, on 20 December, ahead of the meeting where the results of the long process to select a chief anti-corruption prosecutor were to be announced, the scandalous Kyiv District Administrative Court made a ruling to invalidate the entire selection process.
However, the court’s decision could not stop the commission from going forward, as it does not come into force until either 30 days pass or after a decision of a court of appeals. The commission convened on 21 December and announced that the predicted winner with a track record of independent investigations of corruption of Zelenskyy’s entourage indeed got the highest results.
But, somewhat bewilderingly, it did not approve him as the winner, because five members of the commission from the quota of the Ukrainian Parliament — Yevheniy Sobol, Kateryna Koval, Olena Busol, Bohdan Romaniuk, and Andrei Guzhal — refused to vote. The head of the commission Kateryna Koval proposed to postpone the meeting until 23 December, citing the need to receive special inspection information about the candidates from the personnel department. Koval also referred to the decision of the Kyiv District Administrative Court, saying that the commission should follow it.
Members of international organizations in the commission were surprised that the contest results could not be formally approved and insisted on a repeat vote, which also did not yield results.
“I’m sorry you’re doing this now. Obviously, you’re under pressure … You don’t care what people think of you. But one day you’ll be asked what you did in the commission for a year and a half. When we chose the best, you didn’t want to admit it. Maybe you should tell people the truth… “The president promised that Ukraine would elect the head of the SAPO. It was an important promise. You don’t care what happens if this doesn’t happen? I do care,” Drago Kos, Chair of the OECD Working Group on Bribery and international member of the commission, said addressing the members who did not vote.
The position of the head of SAPO, an institution created in 2015 as part of Ukraine’s new anti-corruption architecture, has been vacant since August 2020, when its head Nazar Kholodnytskyi resigned. An independent selection process to select a new anti-corruption prosecutor chief has been a crucial issue for Ukraine’s reform agenda, as well as its western partners.
Particularly, finishing this appointment before the start of December 2021 is one of the key requirements of the IMF’s agreement with Ukraine. Ukraine also promised in September 2021 to elect the head of the SAPO, as revealed in the joint statement after a meeting between Ukrainian President Volodymyr Zelensky and US President Joe Biden.
Fingers pointing at the President’s Office
Vitaliy Shabunin, head of the Anti-Corruption Action Center, accused the Ukrainian authorities of being responsible for yet another failure of the competition, stating that the part of the commission controlled by the Bankova, i.e. President Zelenskyy and the head of his office Andriy Yermak, disrupted it:
“So that our Western allies have no doubt that Zelenskyy and Yermak spat in their faces. To understand how controlled the [commission members controlled by Zelenskyy and Yermak] are, they refused to formalize their own scores which they personally announced,” Shabunin wrote on Facebook.
Mykhailo Zhernakov, head of the DEJURE foundation, an NGO focused on judicial reform, is also convinced that the President’s Office is to blame for the disruption of the final stage of the contest to select the anti-corruption prosecutor. In a comment to Euromaidan Press, he told there is little doubt that both the members of the commission and the Kyiv District Administrative Court, known for perennially serving the Ukrainian elites, are acting with the connivance of the President’s Office.
“Why did they do this? They were obviously implementing an order to not announce the winner to allow for some other maneuver. Like for the Kyiv District Administrative Court to prohibit announcing the results, or whatever other nonsense they can come up with. I think they will continue playing this game. It’s difficult to make predictions, though.”
Zhernakov says there are two options for Zelenskyy’s involvement in the contest’s disruption: either Zelenskyy’s minions — Yermak, Tatarov — are acting independently, setting the president up, and must be fired immediately, or it’s Zelenskyy’s joint game with them, and he pretends that he is eagerly waiting for the results, which are contingent on “independent” commission members he cannot influence.
A link between Zelenskyy and Kyiv District Administrative Court
The legal expert notes that a connection between Zelenskyy and the Kyiv District Administrative Court is sure to exist, as well, reminding that hypotheses that this institution with a dubious reputation could be used to disrupt the SAPO contest well over a year ago. Under public pressure, Zelenskyy had submitted a draft law to liquidate this court, led by a judge who is suspected of planning to seize state power. However, the law has stalled in the Verkhovna Rada, where President Zelenskyy’s party Servant of the People holds a majority, for over nine months.
Zhernakov notes that the Kyiv District Administrative Court’s ruling, which, according to a legal analysis by a member of the Anti-Corruption Action Center’s board, is based on a non-existing provision of the law. Simply speaking, it was made up. But a resolute reaction from the President’s Office is yet to follow:
“Let’s look at the reaction of the President’s Office to the Court’s decision regarding the SAPO contest: it is much milder compared to statements of the president regarding other judicial scandals, when Zelenskyy did not mince words, for instance likening judges of the Constitutional Court who canceled asset declarations for officials to ‘three devils who crawled out of hell.’ But here, the President meekly said ‘the decision is not final and will be analyzed in detail regarding compliance with the law.’ Well, today, the decision of the court was analyzed; it was absurd and illegal. If the president does not harshly speak out on, say, opening criminal cases against the judges who made the decision, or does not bring up the issue of his law on liquidating the SAPO, it simply means that this is a joint scheme approved by him and that Zelenskyy personally gave the judges a green light.”
Why is the President’s Office exerting so much effort to control the SAPO? Mr. Zhernakov explains that it’s because this institution investigates the corruption crimes of Ukraine’s top brass:
“SAPO people will directly chase Zelenskyy’s team — for instance, NABU is chasing Tatarov right now — or other members of the authorities. And a lot of what they are doing is corruption. 13 articles of the Criminal Code are in NABU’s purview and SAPO is responsible for controlling the accusation. Obviously, whoever controls SAPO controls if the cases opened against Tatarov and the like will move or not.”