Incomplete Powers of SAPO within “International Cooperation,” Persecution of Journalists and Whistleblowers: What’s Behind Draft Law 10242?

On December 17, 2024, the Verkhovna Rada Committee on Law Enforcement led by Serhii Ionushas, the Servant of the People party, considered the scandalous draft law No.10242 for the third time. The authors of this regulatory act are several MPs from the Servant of the People party, former members of the Opposition Platform—For Life party, and a member of the Dovira parliamentary group. Transparency International Ukraine has already spoken out against its destructive provisions concerning journalists and whistleblowers. 

On December 4, this draft law lacked 13 votes for adoption in the Verkhovna Rada, so MPs sent it for a second reading. As we can see, the Committee considered it again and again submitted it to the parliament for approval.

If last time, the draft law added provisions on the restoration of property confiscation when concluding an agreement within corruption offenses, now they are no longer present and are unnecessary. On December 5, the Verkhovna Rada voted for the draft law 12243-1 as a basis and in its entirety, which supplemented Article 77 of the Criminal Code of Ukraine with a much better, but still flawed provision. It will allow negotiating the confiscation of property with a suspect or accused who concludes an agreement on exemption from real punishment for a corruption or corruption-related criminal offense. 

However, MPs continued to work on the draft law 10242, and this clearly shows that its primary purpose was not in the declared restoration of confiscation, which was added later, but in the persecution of investigative journalists and whistleblowers. This conclusion can be drawn, since the authorities did not heed the previously expressed constructive proposals of the public on the creation of effective tools for the protection of journalists and whistleblowers. 

To do this, as “balancing” norms to the remaining provisions against whistleblowers and journalists, which we have already criticized, MPs propose to add norms to correct the “Lozovyi’s amendments” and improve the mandate of the SAPO on international legal assistance (spoiler alert: after the adoption of this draft law, the provision will not be functional).

Key conclusions 

–   The draft law does not solve the problem of data trafficking but instead threatens whistleblowers and investigative journalists with imprisonment for copying and publishing information from closed registers. At the same time, the release from prison proposed in the draft law does not apply to journalists and whistleblowers of socially necessary information and state secrets. Corruption whistleblowers may lose this right due to the re-qualification of the violation by the pre-trial investigation body to a non-corruption offense, or due to the narrowed interpretation of the NACP regarding the occurrence of the status of a whistleblower from the moment of its official registration, rather than a report. In addition, the draft law strengthens the liability for the dissemination of information from closed registers and legalizes the surveillance of investigative journalists by law enforcement agencies;

–       the draft law contains two positive aspects: the SAPO head’s authority to establish joint investigative teams and the abolition of the grounds for closing criminal proceedings due to the expiration of the pre-trial investigation;

–       other adopted changes may increase the workload on the court by granting investigating judges additional powers to consider motions on the prosecutor’s obligation to complete the pre-trial investigation. To consider such motions, investigating judges will need to conduct full-fledged court hearings, study materials on the terms and their extension. This will create an additional burden, especially on the HACC, which is already overloaded with complex corruption cases. And neither this draft law nor the current legislation provides for appeals against such decisions.

–       The proposed legislative provisions will not improve the powers of the SAPO in terms of international legal assistance.Although the draft law tries to give the SAPO head the authority to extradite and establish joint investigation teams, the amendments to the CPC of Ukraine are not enough; there is also a need to update the laws on ratification of international treaties, which determine the responsible authorities for communication with foreign partners. Without this, foreign bodies may not recognize the legality of requests from the SAPO, as it was previously the case with the NABU.

Our suggestions

We are convinced that it would be best for the parliament to reject draft law 10242 and register individual draft laws that will properly address the following issues:

–        exemption from liability for whistleblowers of socially necessary information, including state secrets, aligning it with Article 39 of the Criminal Code regarding what is not a criminal offense of causing harm to law enforcement interests when absolutely necessary;

–        introduction of a broad definition of the whistleblower of socially necessary information to comply with the EU Directive, so that other guarantees of protection extend not only to whistleblowers of corruption;

–        cancellation of the absolute closure of the case by the court due to the expiration of the investigation period, introduced by the “Lozovyi’s amendments”;

–        providing the SAPO with an opportunity to apply for extradition and establish joint investigation teams without the involvement of the Prosecutor General’s Office;

–        allowing the SAPO head to independently open criminal cases against MPs.

Conclusions

Transparency International Ukraine continues to believe that the lawmakers’ renewed attention to draft law 10242 is unjustified and undoubtedly harmful. 

Voting for it will not correct the “Lozovyi’s amendments” and will not grant effective powers to the SAPO, but will undermine the institution of whistleblowers, disrupt the functioning of freedom of speech and the work of journalists (including the protection of sources) in a democratic society. 

The draft law seriously reduces the existing guarantees for the protection of whistleblowers, especially in the field of national security and defense, which jeopardizes the proper functioning of whistleblowing and democratic foundations. It is the whistleblower’s guarantee to disclose information with limited access through public channels and through the media that is the most progressive in terms of international standards and best practices. Freedom of speech and the right to information must be respected even in areas with state secrets.

The legislator must go back to the inclusive development of proposals on the exemption of whistleblowers of socially necessary information from liability, including state secrets, under Articles 361, 361-2, 328, 330, 422, 39 of the Criminal Code, and not legalize the surveillance over the authors of investigations and jeopardize the European integration path of Ukraine, following the practices of the aggressor country.

As far as the “Lozovyi’s amendments” are considered, cancelling the mandatory closure of criminal proceedings due to the expiration of the pre-trial investigation and granting the court powers in cases where a significant violation of human rights is established when the pre-trial investigation is missed will suffice. A professional discussion of mechanisms that will help improve the procedure for responding to non-compliance with reasonable terms of pre-trial investigation needs to be conducted.

As far as the competence of the SAPO in the field of international legal assistance is concerned, it is necessary to:

–        supplement the CPC of Ukraine with provisions that the Specialized Anti-Corruption Prosecutor’s Office considers and decides on the establishment of joint investigative groups at the request of the NABU detective, the SAPO prosecutor, and the competent authorities of foreign states. Clarify that the functions of the central body of Ukraine regarding the extradition of suspects and accused in criminal proceedings within the jurisdiction of the NABU during the pre-trial investigation are carried out by the SAPO;

–        amend the Law of Ukraine on Ratification of the European Convention on Extradition, the Law of Ukraine on Ratification of the United Nations Convention against Corruption and others, the Law of Ukraine on Ratification of the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters, and others, indicating that the SAPO has extradition powers in accordance with these international treaties. 

What do we have now?

Regarding the issue of “Lozovyi’s amendments” and the SAPO powers

The general terms of the pre-trial investigation are defined in Art. 219 of the CPC of Ukraine. The answer to the question of what the prosecutor should do when the terms of the investigation expire is contained in the provisions of Articles 219, 280, and 294 of the Criminal Procedure Code of Ukraine; they regulate the terms, the procedure for extension, and the general provisions for the completion of the pre-trial investigation.

The court may close criminal proceedings if, after serving the person with a suspicion notice, the period of pre-trial investigation specified in Article 219 of this Code expires. However, this does not apply to cases of serving a person with a suspicion notice of committing a grave or especially grave offense against the life and health of a person. A number of high-profile decisions of the HACC are associated with this authority of the court: the closure of the Alperin, Rotterdam+ and other cases, as well as no less high-profile overturning of these decisions by the Appeals Chamber.

If the defense or another participant believes that the investigation is going on for too long, they may complain about it to a higher-level prosecutor in accordance with Article 308 of the CPC of Ukraine. The higher-level prosecutor shall review the complaint within 3 days and provide mandatory instructions. The decision of the prosecutor to refuse to grant the complaint about non-observance of reasonable terms by the investigator, inquirer, prosecutor during the pre-trial investigation can be further appealed to the investigating judge.

Currently, only the Prosecutor General’s Office has the authority to send requests for extradition of persons involved in corruption cases investigated by the NABU, as well as to establish joint investigative groups within the framework of international cooperation. There are two reasons for this. In accordance with Art. 574, part 2 of the CPC of Ukraine, the Prosecutor General’s Office is the central body of Ukraine for the extradition of suspects accused within criminal proceedings during the pre-trial investigation. In accordance with Art. 571, part 2 of the CPC of Ukraine, the Prosecutor General’s Office considers and decides on the establishment of joint investigative groups at the request of the investigative body of pre-trial investigation of Ukraine, the prosecutor of Ukraine, and the competent authorities of foreign states. That is, the SAPO, although it has recently become a separate legal entity, does not have such powers.

Regarding the issue of whistleblowers and investigative journalists

The current Criminal Code in Art. 361-2 provides for imprisonment for up to two years for unauthorized sale or distribution of restricted information stored in computers, automated systems, computer networks, or on carriers of such information created and protected in accordance with the current legislation. 

If such actions are committed repeatedly or by prior conspiracy of a group of persons, or if the dissemination of such information has caused significant harm, this means imprisonment from two to five years. According to the classification of the Criminal Code, this crime is not grave, so it is not subject to the possibility of covert investigative (search) actions provided for by the Criminal Procedure Code—surveillance, wiretapping, etc.

Similarly, a sanction of up to 3 years of imprisonment is to be applied for unauthorized copying of information from such closed registers in accordance with Art. 362 of the Criminal Code.

Examples of restricted information can be photos/videos from speed cameras or surveillance cameras to detect undeclared cars, notarial actions to census undeclared property, data from the hereditary register and the register of powers of attorney, border crossing marks, medical data on prosecutors with disabilities, etc. This does not apply to public state registers, such as the register of declarations.

Even the current version of the Criminal Code does not protect whistleblowers for disclosing publicly necessary information, in particular that with limited access. The Criminal Code currently lacks a guarantee of exemption from criminal liability for the dissemination of socially necessary information under Articles 361 (unauthorized interference with the operation of computer networks), 361-2 (unauthorized sale or distribution of restricted information), 328 (disclosure of state secrets), 330 (transfer or collection of official information in the field of national defense from operational and investigative, counterintelligence activities), 422 (disclosure of military information constituting state secrets) of the Criminal Code. In Article 39 of the Criminal Code on exemption from liability when absolutely necessary, there is no mention of the term “whistleblower.”

However, such guarantees are established by the current information legislation of Ukraine. Thus, Articles 29 and 30 of the Law on Information and Article 11 of the Law on Access to Public Information features guarantees of protection when disseminating publicly necessary information with limited access and a guarantee of exemption from liability for such disclosure, even contrary to official duties. To implement these guarantees, the court must establish a public necessity or recognize that it was information about an offense. However, the Criminal Code is inconsistent with the above-mentioned laws, as, for example, has already been done when clarifying the guarantee of exemption from liability of Art. 231 of the Criminal Code regarding the disclosure of commercial or banking secrets.

Risky changes proposed by MPs

Regarding the issue of “Lozovyi’s amendments” and the SAPO powers

In addition to the relatively positive changes, such as the abolition of the pre-trial investigation expiration as a basis for closing criminal proceedings, MPs make certain amendments to the CPC of Ukraine, which are risky and not aimed at solving the problems of the pre-trial investigation.

1. Increasing the workload on investigating judges by granting them additional powers to consider motions on the prosecutor’s obligation to complete the pre-trial investigation

MPs propose to give the defense, the injured party, and other persons whose rights are limited during the pre-trial investigation the right to file a motion on the prosecutor’s obligation to decide on the termination of the pre-trial investigation after its expiration. According to the draft law, such motions shall be considered by the investigating judge of the local court; in NABU/SAPO cases, this will be done by the investigating judge of the High Anti-Corruption Court.

The consideration is proposed to take place no later than five days from the date of receipt of the motion. At the same time, the absence of the parties duly notified of the meeting shall not prevent such consideration. If the motion is granted, the judge will oblige the prosecutor to make a decision on the completion of the investigation and the opening of materials or the closure of the proceedings.

Notably, under the new draft law, such a decision cannot be made if at the time of consideration of the motion the materials have already been opened in accordance with Article 290 of the CPC. 

The motives for creating such a mechanism are clear: there have been cases when pre-trial investigation bodies seize property, for example, of a business, but no pre-trial investigation takes place. However, for this case, there is a mechanism for appealing against non-compliance with reasonable time limits by the pre-trial investigation body, which is contained in Article 308 of the CPC of Ukraine. 

It states that participants in the criminal process can appeal against the violation of the reasonable terms of the investigation to a higher-level prosecutor, who must consider the complaint within 3 days and provide mandatory instructions. The decision of the prosecutor to refuse to grant the complaint about non-observance of reasonable terms by the investigator, inquirer, prosecutor during the pre-trial investigation may be further appealed to the investigating judge. Judges of the Supreme Court also stated the need to improve these provisions.

In addition, supplementing the CPC of Ukraine with the provisions proposed by MPs provides for a possibility for their abuse. This will cause a significant additional workload on the judicial system, especially on the HACC, which is already overloaded with complex corruption cases. Each such motion will require a full-fledged court hearing, with a study of the materials on the time limits of the investigation and their possible extension.

In addition, the decision based on the results of the trial cannot be challenged in the appellate instance. This effectively deprives prosecutors of procedural opportunities to respond to potentially unreasonable decisions, which may adversely affect the quality of the investigation of complex corruption schemes.

2. The proposed legislative provisions will not improve the powers of the SAPO in terms of international legal assistance

When the parliament adopted changes in the part of the SAPO’s independence in December 2023, we emphasized that the lawmakers did not take into account the critical recommendations:

–        cancellation of the absolute closure of the case by the court due to the expiration of the investigation period, introduced by the “Lozovyi’s amendments”;

–        providing the SAPO with the opportunity to apply for extradition without the involvement of the Prosecutor General’s Office;

–        enabling the head of the SAPO to independently open criminal cases against MPs.

Ensuring a proper level of the SAPO’s autonomy, among other things, is one of the structural beacons of the IMF’s Memorandum for Economic and Financial Policy. However, legislators have quite formally approached the implementation of this requirement because amendments to the CPC of Ukraine will not provide the SAPO with the opportunity to independently send extradition requests. 

International cooperation in criminal cases is regulated not only by the CPC of Ukraine, but also by international treaties and ratification laws. Each such international treaty of Ukraine imposes on it the obligation to determine a public body responsible for communication with foreign authorities by its ratification law. Foreign law enforcement agencies are guided by international treaties when assessing the legality of a request to them.

Thus, granting the autonomy to the SAPO in the field of international cooperation in criminal cases must be accompanied not only by amendments to the CPC of Ukraine, but also by amendments to a number of laws of Ukraine on the ratification of international treaties, in particular to the Law of Ukraine on Ratification of the European Convention on Extradition, the Law of Ukraine on Ratification of the United Nations Convention against Corruption and others, the Law of Ukraine on Ratification of the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters and others. Otherwise, we will face the problem that the NABU experienced before the amendments to the relevant ratification laws.

Regarding the issue of whistleblowers and investigative journalists

1. The new “exception” that the unauthorized sale or distribution by the whistleblower of information with restricted access through the mechanism of the Law on Prevention of Corruption does not entail criminal liability, in fact, will not release the whistleblowers from prison. In addition, such a change does not cover state secrets, as well as journalists.

On December 17, the Committee amended the draft law returned for reconsideration: “Unauthorized sale or distribution of restricted information committed by the whistleblower by notifying the relevant entities in the manner prescribed by Articles 53-1 and 53-2 of the Law of Ukraine on Prevention of Corruption are not actions provided for in Article 361-2 of this Code, and does not entail criminal liability.”  

At first, this seems to be a compromise exception, which excludes the fact that the whistleblowers will be put behind bars, but, in fact, there is no compromise in this provision.

The Law on Prevention of Corruption does not operate with a broad definition of the whistleblower of socially necessary information but applies only to whistleblowers of corruption. In practice, this will mean that the exception prescribed by the MPs regarding the protection of whistleblowers will not function. After all, the disclosed information from closed registers about, for example, the non-return of certain MPs to Ukraine after staying abroad or obtaining a passport of a foreign country is not a corruption offense and, accordingly, does not fall within the scope of Articles 53-1 and 53-2 of the Law on Prevention of Corruption. 

Even if we talk only about whistleblowers, it is important to note that Article 53-2 of the Law on Prevention of Corruption does not address the issue of reporting information with restricted access, which contains state secrets. Therefore, a de facto corruption whistleblower who divulged state secrets will be prosecuted.

In addition, last year, the National Agency on Corruption Prevention adopted a clarification of who is a whistleblower, that is, instead of expanding, narrowed this definition. This will prevent the proper coverage of actual whistleblowers with the “exception.” TI Ukraine opposed this narrowing interpretation together with the NaUKMA Anti-Corruption Research and Education Centre (ACREC). Because effectively, in accordance with the position of the NACP, the whistleblower is recognized as such only if there is a proceeding registered by the law enforcement body, or if the whistleblower has been entered into the Unified Reporting Portal. This is despite the fact that the status of a whistleblower under the law should arise from the moment of a report.

The possible re-qualification of the offense by the pre-trial investigation body will also negatively affect the coverage of whistleblowers. For example, if at first a person reported what seems to be corruption, counting on the protection of the corruption whistleblower, and the investigator later qualifies that crime as fraud, such a person will not be a whistleblower.

In addition, this provision will not protect journalists because their work (for example, the publication of an investigative article on the site or uploading a story to YouTube) will not qualify under the Law on Prevention of Corruption but falls under the prohibition of placing “leaked” information in free access.

2. Enhancing the liability for illegal copying of information from closed registers up to 8 years in prison legalizes surveillance over whistleblowers and journalists. 

The new version of the draft law features threats of imprisonment; during martial law, whistleblowers and journalists under Art. 362 of the Criminal Code (which does not provide for any of the above-mentioned exceptions) can be imprisoned for a period of 6 to 8 years. 

Moreover, such increased liability will allow legal surveillance and wiretapping of journalists and whistleblowers within the framework of the Criminal Procedure Code. It will be enough for the investigator to manipulate and assume that the isolated data from the closed register shown in the investigation were part of a larger array copied from there. Subsequently, it is relatively easy to register proceedings under Art. 362 of the Criminal Code concerning unauthorized copying of information at any time and use it as a pretext for conducting covert investigative (search) actions against whistleblowers and journalists. 

Such a disproportionate sanction, which turns the use of information from closed registers into a serious crime, will have a strong “cooling effect” on future disclosures and investigations and will not solve the problem of selling closed data from registers by dishonest law enforcement officers, etc. The opening of criminal proceedings that will threaten journalists and whistleblowers with imprisonment, and not corrupt officials, will lead to additional pressure and the fact that the right of a journalist not to disclose the source of information will be negated, and the institution of whistleblowers will be undermined. At the same time, the number of new investigations and exposures and the quality of current ones may decrease significantly, and the scope of corruption and abuse will increase, and they will be concealed from society.