On April 30, 2021, MPs from Servant of the people registered draft law No. 5459 “On Amendments to Certain Laws of Ukraine on Bringing the Status of the National Anti-Corruption Bureau of Ukraine into Compliance with the Requirements of the Constitution of Ukraine.” This document, according to its creators, is aimed at eliminating contradictions between the Constitution of Ukraine and the Law of Ukraine “On NABU.”
What do we have now?
Earlier, the NABU director was appointed and dismissed by the president of Ukraine. The head of the bureau could not be dismissed, and the Presidential Decree on his appointment could not be canceled, except for the legally provided grounds for this. The selection committee consisted of nine people: three each were delegated by the president, the Cabinet of Ministers and the Verkhovna Rada. The performance of this commission was provided by the Office of the President. After selecting two or three best candidates, the commission submitted a petition to the president regarding the appointment of one of them to the position of NABU director.
The decisions of the Constitutional Court of August 28 and September 16, 2020, radically changed the situation, recognizing, among other things, the powers of the president to appoint the head of the bureau as unconstitutional. In this regard, there was a need to fill in the gaps in the anti-corruption legislation.
Draft law No. 5459 is not a pioneer in this area: since the Constitutional Court made decisions on the National Bureau in August-September 2020, MPs have submitted several draft laws to the Verkhovna Rada. Their goal is to resolve the crisis related to the lack of a procedure for electing and dismissing the head of the NABU.
We will need the procedure for appointing a new NABU director in April 2022 because then Artem Sytnyk’s term of office expires. Since one of the decisions of the Constitutional Court declaring the Presidential Decree on the appointment of the current head of the NABU unconstitutional does not affect the legality of the latter’s exercising his powers, his dismissal must have the appropriate basis envisaged by the specialized law. TI Ukraine has already stated this in the analysis of this decision of the Constitutional Court. As of today, there are no legal grounds for dismissing the current NABU director.
What is proposed in draft law No. 5459?
Draft law No. 5459 is very similar to government draft law No. 5070. TI Ukraine also analyzed its main provisions. Thus, both envisage changing the status of the NABU from a state law enforcement agency to a central executive a body with a special status. This change is due to the decision of the Constitutional Court of September 16, 2020, which indicates the signs of belonging of the National Bureau to the branch of executive power.
However, when comparing No. 5459 and No. 5070, there is an improvement: the new draft law explicitly provides that changing the status of the NABU does not require any procedures for reorganizing or liquidating the body and labor changes in relation to its employees, which will contribute to the continuity and stability of the work of the National Bureau.
Changing the status to a central executive body also means that the NABU will now report to the Cabinet of Ministers. In this regard, the draft law prescribes the specifics of the procedure for interaction between the National Bureau and the Cabinet of Ministers of Ukraine in order to exclude its interference in the activity of the NABU. In particular, it is indicated that the Cabinet of Ministers cannot cancel NABU acts either completely or in a separate part. This and other norms related to the impossibility of government interference in the activity of the NABU prove that No. 5459 carries fewer risks for the independence of the Anti-Corruption Bureau compared to No. 5070.
The procedure for selecting a new NABU director requires the greatest focus because these norms directly affect the further independence of the body from external influence. The NABU director will be selected by a six-person selection commission, of which three are delegated by the National Security and Defense Council, and the remaining three by the Cabinet of ministers based on proposals from partners who have been providing Ukraine with assistance in the fight against corruption over the past two years.
The government draft law proposes the adoption of a decision by a simple majority of the selection commission. At the same time, draft law No. 5459 slightly increases the level of objectivity in this part: to make a decision, at least 4 votes of the commission members are required, of which at least 2 votes are from the commission members delegated by the National Security and Defense Council, and at least 2 votes of experts proposed by partners. Such a norm reduces the possibility of biased election of the director and ensures an equally important role in the decision-making process of both independent members of the commission and persons from the National Security and Defense Council.
Based on the selection results, the commission will present two candidates for the position of NABU director to the government for consideration. The risk of presenting two candidates at once is that there are no selection criteria among them, and this creates space for manipulation and choosing a more favorable candidate. Thus, the head of the National Security and Defense Council is the President of Ukraine. This means that formally the director will be appointed by the Cabinet of Ministers, but the president will still have influence on the election of the head of this central executive body, albeit through the National Security and Defense Council. Therefore, there is a certain risk of further recognition of the relevant provisions of the draft law as unconstitutional.
The draft law also envisages early dismissal of the current director outside the grounds provided for by the current legislation. Sytnyk will continue to exercise his powers, but only until the appointment of a new head of the bureau. The process of electing the latter will begin immediately from the date of entry into force of the draft law under consideration. It is very likely that voting for this draft law, and then the announcement and holding of the call for the position of NABU director, will be taking place more than one month. At the time of the appointment of a new director, Sytnyk might almost complete his tenure. However, the establishment of a legally prescribed possibility to dismiss the heads of independent bodies, guided by political intentions, is clearly a negative trend.
This draft law also contains a legislative innovation related to the termination of the powers of the NABU director: if No. 5459 is adopted, it will be possible to remove the latter from office on the grounds and in accordance with the procedure established by the Criminal Procedural Code of Ukraine.
The new draft law also establishes the process of monitoring the NABU’s activity: its audit will be conducted annually by three experts determined by the government based on the proposals of partners. On the positive side, the commission itself will determine the audit methodology and criteria because according to No. 5070, this is the prerogative of the Cabinet of Ministers. Independent approval of the audit method by the commission members helps to reduce the threat of using this procedure for illegal external influence on the NABU. The first audit will be conducted one year after the appointment of a new director of the Bureau. The conclusion of the audit of the bureau’s activity is accepted, provided that it is supported by all members of the commission.
In addition, for the purpose of conducting an audit, No. 5459 envisages the possibility for members of the commission to use the help of assistants, as well as contact government agencies, individuals, and legal entities for the necessary additional information. Both members of the commission and their assistants are required not to disclose personal data obtained as a result of their activity.
Transitional provisions of the draft law No. 5459 state that within eight years after the adoption of the law, the Cabinet of Ministers must submit to parliament a draft law that will terminate the participation of independent experts in the selection of the NABU head and audit. Given that the term of office of the NABU director is seven years, this means that the participation of independent experts in the Competition Commission will be ensured only during two selections. At the same time, it is doubtful that during such a period there will be no need to minimize political influence on the procedure for competitive selection of heads of anti-corruption institutions.
In general, Transparency International Ukraine is receptive to draft law No. 5459. If we compare approaches to solving this anti-corruption crisis — introducing amendments to the Constitution of Ukraine or officially changing the status of the NABU to a central executive body with a special status — we undoubtedly support the latter. More, here.
Clearly positive in comparison to other legislative initiatives is the decision-making procedure of the selection commission, in particular, the balance of votes of its members. The possibility of real influence of independent international experts on the selection results is part of the key to electing an independent head of NABU.
Strengthening the independence of the audit commission and better regulation of its work is also a significant improvement, which can contribute to the long-awaited launch of the procedure for evaluating the effectiveness of the National Bureau.
Despite significant advancements, there is still room for improvement. Thus, it is definitely necessary to amend the regulation on presenting two candidates for the position of NABU director to the government for consideration. To minimize possible manipulation and avoid choosing a candidate of lower integrity, it is advisable to select one person among the applicants, not two. It is no less risky to involve the National Security and Defense Council in the selection process because the president, as the head of this body, will have the opportunity to influence the activities of the selection commission. Finally, the envisaged by the draft law early dismissal of the current director outside the grounds provided for by law is undoubtedly a negative idea.