How can the appeal disrupt SAPO competition?

On July 12, the Sixth Administrative Court of Appeal had to consider the decision of the Kyiv District Administrative Court (KAC) on cancelling the procedure for the work of the SAPO selection commission. However, the fate of the meeting is still unknown, and no decisions have been published.

The fact is that in December 2021, the notorious KAC issued a decision that created another artificial reason for some commission members to delay the approval of the winner in the SAPO competition for half a year. Despite the appeals of the international community, partners, and even the appeal of a part of the commission to convene a meeting, the head of the commission, Kateryna Koval, was waiting for the decision of the KAC to be considered in the appeal. 

The waiting and inactivity mode of the commission continues. It’s been seven months. 

Worst-case scenario

If in the near future the appellate instance confirms the decision of the KAC, the results of the competition, the methodology, the criteria for evaluating candidates, the procedure for commission members’ decision-making — all will be invalid. And therefore, all the stages of the competition and the available rating of the participants with the actual winner of the competition, the NABU senior detective Oleksandr Klymenko, are in question.

In this case, there will be one document that will regulate the activities of the commission — the law “On the Prosecutor’s Office.” However, it does not contain any specifics about the order of work. The only provision prescribed there is the “organization and conduct of the competition.” And there is no clause in the law that the selection commission cannot act without the procedure. Although every conscious person understands that without it, transparent selection of the head of the anti-corruption body is impossible.

The lack of procedure can untie the hands of the selection commission. It is likely that they will appoint a candidate who came second — Andrii Syniuk, prosecutor of the Prosecutor General’s Office. Or they will push through a politically biased person from the outside or from the previous stages of the competition. 

In theory, the commission can do anything if most of its members agree. And we won’t even be saved by the fact that there are international members in its composition. After all, the decision-making mechanism under the 5+2 formula may cease to operate if the appeal confirms the decision of the KAC. 

In addition, a negative decision of the appeal may create conditions under which Prosecutor General Iryna Venediktova will continue to influence the anti-corruption ecosystem, as it was with the case of Tatarov and Yurchenko.

There is a way out. But we need political will.

Any appeal decision must not undermine the SAPO competition. 

If Ukraine wants to continue European integration and raise funds for reconstruction, the members of the selection commission should fulfill their duty and appoint the head of the SAPO in July this year. The Ukrainian government promised this as part of the Ukraine Recovery Plan at the Lugano conference.

In fact, this is not the first deadline for the selection commission. Earlier, it sabotaged the demand of the International Monetary Fund, and the promise of Zelenskyy to Joe Biden remained unfulfilled. Therefore, it is difficult to expect a miracle in July, but we have to.

In addition, Ukraine received a clear demand from the European Commission to appoint a SAPO head. This is one of the seven conditions for the start of EU accession negotiations. Although the European Commission has not set a clear deadline, it will check the status of implementation as early as the end of the year. And in recent days, the G7 ambassadors also stressed the critical importance of appointing the head of the SAPO.

The Presidential Office should be aware of all the threats posed by the delay in the SAPO competition. Today, allied countries support us in the war not only with words, but also with weapons and finances. In exchange, they are waiting for real reforms. But what do they see? 

Two years of sabotaging the competition, a “sudden” decision of the unreformed KAC, which blocks the already delayed selection, and the fact that Kateryna Koval and individual members of the commission (Andrii Hudzhal, Olena Busol, Yevhen Sobol) play into the hands of the controlled part of the Presidential Office.

However, any doubts of the international partners (and they are definitely in this story) can be dispelled if the commission members meet and approve their own points in 3 minutes.