On November 17, 2020, the Verkhovna Rada of Ukraine received the draft law No. 4392 “On Amendments to the Legislation of Ukraine on Administrative Offenses, Criminal Legislation and Criminal Procedure Legislation on the Activities of the Security Service of Ukraine and Intelligence Bodies.” As of January 27, 2021, this project was supported provisionally by the law enforcement committee, i.e. the designated committee for this draft law.
This document not only significantly changes the procedural position of the Security Service of Ukraine (in the context of criminal proceedings), but also threatens the procedural independence of the Specialized Anti-Corruption Prosecutor’s Office and the capacity of the National Anti-Corruption Bureau of Ukraine.
What Is It Like Now?
Today there are clear rules of jurisdiction, that is, rules dictating which body will conduct the pre-trial investigation.
NABU’s jurisdiction is based on subjective (list of persons who are subjects of a criminal offense) and objective (list of corpus delicti) principles. Current rules of investigative jurisdictions establish a number of prohibitions to transfer cases from the investigative jurisdiction of the NABU to other pre-trial investigation agencies. Such imperatives are explained primarily by the need to ensure maximum operational independence and capacity of the NABU and the SAPO in terms of pre-trial investigation.
What Is Proposed?
Draft law 4392 creates a number of significant risks for anti-corruption infrastructure bodies.
- Authorization of the Prosecutor General, in agreement with the head of the SAPO, to transfer NABU cases to the SBU
As noted above, in accordance with Art. 216 of the Criminal Procedural Code of Ukraine, it is prohibited to transfer cases under the investigative jurisdiction of the NABU to other pre-trial investigation agencies.
Currently, the draft law provides for the possibility to instruct the Prosecutor General, with the written consent of the head of the Specialized Anti-Corruption Prosecutor’s Office, to entrust the pre-trial investigation of a criminal offense under Article 36, part 5 of the CPC of Ukraine to the investigative bodies of the Security Service of Ukraine.
For example, if the criminal offense investigated by the NABU relates to the acts provided for in Art. 209 (legalization (laundering) of property obtained by criminal means), this will be the basis for the SBU to claim that such actions pose a threat to state security in the economic sphere. In this case, even the presence of a safeguard in the form of written consent of the head of the SAPO does not guarantee the procedural independence of NABU.
- Violation of the direct prohibition in the CPC to “take away” cases from the NABU.
The current CPC stipulates that “it is prohibited to entrust the pre-trial investigation of a criminal offense under the jurisdiction of the National Anti-Corruption Bureau of Ukraine to another body of pre-trial investigation” (Art. 36, part 5 of the CPC of Ukraine). This mandatory rule is the most important safeguard for the NABU’s independence and guarantees that cases that fall under the jurisdiction of this body will not be transferred to other bodies of pre-trial investigation.
The draft law proposes that Article 36 of the CPC be amended with the phrase “except for cases stipulated by this Code.”
Given that there is currently an illegal practice of local courts using quasi-legal grounds to make illegal decisions to transfer cases from the NABU to other pre-trial investigation bodies, such changes effectively legitimize illegal influence on the NABU and increase the number of ways for individuals under investigation to significantly delay investigations. This is an encroachment on the procedural effectiveness of the NABU in that the body is deprived of the opportunity to effectively conduct a pre-trial investigation.
- Restrictions on the procedural independence and autonomy of SAPO prosecutors
Today, NABU detectives may also investigate criminal offenses under the jurisdiction of investigators of other bodies for the purpose of prevention, detection, termination and disclosure of criminal offenses referred to its jurisdiction at the decision of the NABU director and with agreement of a SAPO prosecutor (Art. 216, part 5, clause 3 of the CPC of Ukraine).
Draft law 4392 proposes the transfer of the approval procedure, regulated by Art. 216 of the CPC of Ukraine, to the level of SAPO head or their deputy. In this case, the concentration of powers to make such decisions is contrary to the status of the prosecutor as a procedurally independent entity, including the influence on the course of the pre-trial investigation by the SAPO leadership.
Also, such a shift in the decision-making point leads to excessive concentration of powers with the head of the SAPO. Their decisions may block the work of the entire institution.
- Restrictions on the procedural independence of the NABU
The NABU may take over cases upon the decision of the procedural manager if the relevant criminal offense has caused or could have caused serious consequences to the legally protected freedoms and interests of a natural or legal person, as well as state or public interests.
Art. 216, part 5, clause 3 of the CPC of Ukraine stipulates that the prosecutor who supervises the pre-trial investigations conducted by detectives of the National Anti-Corruption Bureau of Ukraine, may make the decision to refer criminal proceedings in criminal offenses under Art. 216, part 5, para. 1 of the CPC of Ukraine to the jurisdiction of NABU detectives, if the relevant criminal offense has caused or could have caused serious consequences to the legally protected freedoms and interests of a natural or legal person, as well as state or public interests. Serious consequences should be understood as causing damage to the vital interests of society and the state, including state sovereignty, territorial integrity of Ukraine, exercise of constitutional rights, freedoms and responsibilities of three or more persons.
The draft law proposes that if such referral to the NABU jurisdiction concerns cases investigated by the SBU, it should provide that such transfer takes place only upon a reasoned decision of the Prosecutor General (or acting Prosecutor General).
First of all, the draft poses real threats to the independence and institutional capacity of the SAPO and the NABU. It is true both in terms of the agencies themselves and the independence of prosecutors as separate procedural units.
Second, this document strengthens the role of the SBU in conducting pre-trial investigation and actually “cements” this function. This approach goes beyond the role of the SBU, which has been reiterated by the public multiple times.
Third, reduction of procedural independence and providing the head of the SAPO with powers to approve the aforementioned procedural documents invalidates the procedural independence of prosecutors and does not comply with the status and functions of an administrative position in prosecution agencies. The Law of Ukraine “On Prosecution” clearly separates the notions of “prosecutorial powers” and “an administrative position,” noting that an administrative position does not exempt an individual from exercising prosecutorial powers. Thus, granting the above powers constitutes an encroachment on the procedural independence of a prosecutor.
Given the above, the draft law should not be supported as one providing for no positive changes.
The analysis has been prepared by TI Ukraine’s legal advisor Serhii Kurinnyi.