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OSW Commentary OSW Commentary CENTRE FOR EASTERN STUDIES NUMBER 355 16.10.2020 www.osw.waw.pl Ukraine: attempted attack on anti-corruption bodies? Piotr Żochowski, Sławomir Matuszak, Tadeusz Iwański The high susceptibility of Ukrainian officials to corruption has been one factor affecting the condition of the Ukrainian state. Since 2014, the government has managed to create several anti-corruption institutions whose independence from the executive is one of the main conditions for Ukraine to continue receiving financial assistance from the West. Over the past year, this system has become more robust, and the first sentences were issued in cases involving state officials caught up in corruption schemes. However, despite President Volodymyr Zelensky’s declared determination to combat corruption among state officials, recent months have seen measures that may weaken the key institutions established to combat corruption; this would be tantamount to reversing reforms in this field. These actions have been initiated by politicians and oligarchs intending to make the fight against corruption less effective. This has triggered major concern from Western donors (who are responding to this by threatening to halt financial support and to suspend the visa-free regime) and from Ukrainian civil society. The Ukrainian “anti-corruption trio” was established to draw up indictments on the basis of evidence compiled and provided by NABU, In Ukraine, efforts to build a system of institutions and to bring them before court. to combat corruption among state officials last- ed five years. In May 2019, President Zelensky’s To ensure the independence of anti-corruption administration ’inherited’ the system of bodies institutions, a special procedure for selecting tasked with combating corruption among state their heads was adopted (by an open competition officials. It had been created during Petro Poro- in which only individuals with an untarnished shenko’s presidency in response to pressure from reputation can participate) and a provision was Western lenders and Ukrainian activists. Back in enacted to prevent them from being quickly dis- April 2015, the National Anti-Corruption Bureau missed on political grounds. For four years, the of Ukraine (NABU) was established as a special effectiveness of NABU and SAP was minor because service to combat this type of crime within the their indictments were filed with unreformed and state administration. In order to boost the effec- corrupt common courts. To improve the situation, tiveness of this institution, in December 2015 the the High Anti-Corruption Court of Ukraine (HACC) Special Anti-Corruption Prosecutor’s Office (SAP) was created. Although the law came into effect EDITORS: Wojciech Konończuk, Szymon Sztyk, Tomasz Strzelczyk TRANSLATION: Magdalena Klimowicz CO-OPERATION: Nicholas Furnival Centre for Eastern Studies DTP: Urszula Gumińska-Kurek ul. Koszykowa 6a, 00-564 Warsaw, Poland tel.: (+48) 22 525 80 00, [email protected] The views expressed by the authors of the papers www.osw.waw.pl do not necessarily reflect the opinion of Polish authorities. in June 2018, until autumn 2019 the operation combat abuse. They fear that, once the anti-cor- of this body was disrupted due to the fact that ruption system becomes more robust, it will make all corruption indictments, regardless of their it difficult for them to continue their corrupt substance, were filed with this court and this practices at the interface of big business and the prevented it from examining the most important state administration. cases in an efficient manner. Anti-corruption bodies under fire Streamlining the anti-corruption system In September 2020, one event that triggered a crit- ical reaction from the Western countries and civil Streamlining the operation of HACC was an un- society organisations which monitor the course of questioned success for President Zelensky, which reforms in Ukraine involved the Ukrainian parlia- he achieved at the beginning of his term. He did ment electing seven out of the eleven members this by issuing a decision that NABU and SAP of the selection committee formed to nominate should only file indictments regarding corruption a candidate for the head of SAP. This post has among senior state officials with this court. The remained vacant since August 2020, when Nazar remaining cases were to be examined by the Holodnitsky resigned due to his conflict with the relevant departments of the public prosecutor’s Prosecutor General. The line-up of the committee office. Another presidential initiative intended has raised concerns from anti-corruption activists, to streamline the system built to combat corrup- a portion of the opposition, and of the West. These tion involved enacting the law in autumn 2019 groups of critics argue that committee members to regulate the legal status of individuals who were recruited taking into account their party report information on corruption-related crimes. membership and that they failed to fully meet the In this law, these individuals are referred to as criteria of professionalism and integrity. This in “exposers” (whistle-blowers). Whenever they are turn offers no guarantee that their attitude during involved in the practice they intend to report, the selection committee’s work will not be biased, they are absolved of criminal responsibility. In- which may result in an individual susceptible to dividuals who report a corruption-related crime pressure from politicians being selected as the in which they were not personally involved will head of SAP. receive 10% of the value of funds recovered by the state. In addition, the law authorised NABU to Oligarchs and the representatives independently use surveillance techniques (wire- of the political elite associated with tapping, visual surveillance) without having to them are particularly interested in apply to the Security Service of Ukraine (SBU) for undermining the effectiveness of permission. President Poroshenko’s administration the bodies established to combat had successfully blocked the introduction of these corruption. measures for several years. In addition, on 16 September the Constitutional However, resistance from numerous political Court of Ukraine ruled that some provisions of groups, officials at various echelons and business the law on NABU are unconstitutional. The ruling circles continues to be an obstacle to the smooth stated that the president’s powers authorising him operation of anti-corruption institutions. These to establish NABU and to appoint and dismiss its groups are accustomed to creating and using head have not been defined in the Basic Law. This mechanisms that help them obtain favourable was another ruling by the Constitutional Court in administrative decisions. Oligarchs and the rep- which the court requested the Verkhovna Rada resentatives of the political elite associated with to prepare and enact a new law on the National them are particularly interested in undermining Anti-Corruption Bureau. In the previous ruling, the effectiveness of the bodies established to issued on 28 August, the court considered that OSW Commentary NUMBER 355 2 Artyom Sytnik had been unconstitutionally ap- Another development suggesting that a coordi- pointed (by President Poroshenko) to his position nated attack on the system of anti-corruption as head of NABU. There is a risk that the new institutions has been launched to disrupt their wording of the law will contain provisions which operation involved an attempt to challenge the will make the National Anti-Corruption Bureau constitutionality of the operation of HACC. On and its head more vulnerable to political pressure. 22 July 2020, 49 MPs (representing Medvedchuk’s The Constitutional Court has obligated the MPs to grouping and the For the Future grouping) filed enact this new law within three months. a motion regarding this claim. The arguments presented in the motion suggest that HACC was Attempts to undermine the consti- established in a manner which seriously violates tutionality of anti-corruption bodies the principles of the judicial system defined in the result from mistakes made during Ukrainian constitution. the legislative process. The anti-corruption system The initiators of the most recent motion to the Con- in a legal trap stitutional Court included fifty MPs from the Serv- ant of the People parliamentary group1. This group The practice of bringing motions to the Constitu- has been associated with oligarch Ihor Kolomoysky, tional Court in an attempt to disrupt the operation and representatives of the pro-Russian Opposition of the system of anti-corruption institutions is Platform – For Life (whose leaders include Viktor a consequence of mistakes made back when the Medvedchuk, a politician with close political and subsequent versions of the wording of the laws business ties with Russia). It seems that this tactical were being debated in parliament. Back then, in- alliance of MPs representing the two parliamen- sufficient effort was made to ensure that the new tary groupings is based on the similar intentions provisions were consistent with the constitution. of both sides. Medvedchuk is mainly interested in This is why the rulings of the Constitutional Court supporting activities that could potentially trigger in the NABU case do not give rise to legal doubts, a political crisis in Ukraine and in Ukraine’s relations and the problematic issue of the constitutional with the West, and in undermining the president’s empowerment of the president to appoint and position. In recent months, Kolomoysky (who is dismiss the head of this institution had already the subject of an FBI investigation into money been raised. In autumn 2019, President Zelensky laundering in the US) has publicly expressed de himself made an attempt to amend the provisions facto pro-Russian views by calling for Ukraine of the constitution to clarify his powers regarding to break off its cooperation with the IMF and to NABU. However, his proposal failed to garner the declare insolvency. The MPs associated with Kolo- required parliamentary majority (300 MPs), and it moysky support the activities intended to reduce was rejected by almost the entire opposition due the effectiveness of the anti-corruption system.
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