NABU Leaks Investigation: Legal Analysis

On September 3, NABU director Semyon Kryvonos dismissed his first deputy Gizo Uglava. However, Uglava was not fired for what had caused a wave of public indignation—alleged leaks of information about a pre-trial investigation. The reason for the dismissal was a violation of the ethical behavior of civil servants and the NABU Code of Ethics, in particular, pressure on whistleblowers. 

In the case with the leaks, it was reported that criminal proceedings and 2 official investigations had been initiated. The former concerns alleged pressure on a whistleblower (for which Uglava was fired), the latter concerns alleged unlawful instructions to detectives. 

Although we have the first decision in the leak situation—the dismissal of Uglava—several important questions remain: will there be other measures taken in the leak case, and what is actually happening with the investigations? We tried to describe all legal aspects, relying purely on official public information, without hints and innuendoes, and possible scenarios of how events might unfold.

Dismissal of Uglava and results of official investigations

The NABU’s notice on the dismissal of Gizo Uglava stated that the actions of the first deputy director of the Bureau led NABU employees to believe that whistleblowing activities might bring about negative consequences. This is an unacceptable violation of the highest standards of ethics and integrity, which the employees and senior management of the NABU should be guided by in their activities. This concerns the results of an official investigation into the pressure on the whistleblower. Uglava has already announced that he will appeal his dismissal in court. 

On August 21, 2024 (almost 2 weeks before his dismissal), Gizo Uhlava had submitted a statement to the NACP about the NABU director’s violation of anti-corruption legislation and thus was granted whistleblower status.   

What can Uglava get out of the whistleblower status? It provides for certain guarantees: in particular, a whistleblower cannot be brought to disciplinary liability for reporting possible facts of corruption or corruption-related offenses. That is, the body must prove in the future that the applied negative influence measures were not a punishment for the whistleblower’s report. 

But one way or another, Uglava was dismissed. It is difficult to state how justified such a decision was because the conclusions of the disciplinary commission are not publicly available. Gizo Uglava, for his part, has already announced that he will appeal his dismissal in court.

Thus, there is a decision in one of the official investigations, but we do not know anything about the results of another official investigation, which concerns issuing unlawful instructions to detectives. Moreover, if this investigation was also conducted regarding the actions of Uglava, and a violation was established, then he will not be brought to disciplinary liability again as he is no longer a NABU employee. 

What is important is that these two official investigations do not concern the actual leaks, and, as far as we know, no official investigation is being conducted specifically into the leaks in the NABU. Kryvonos argued that the violator could be brought to disciplinary liability no later than a year after an offense had been committed. The pre-trial investigation, according to the NABU director, provides many more tools for establishing the truth. The alleged leak, according to the materials of journalistic investigations and the NABU director, took place on April 24, 2023. That is, the terms of prosecution have already expired. 

True, but the illegal disclosure of information with limited access is a clearly defined basis for disciplinary liability under the Law on the NABU (article 28, part 4, clause 2), that is, it is subject to an official investigation. The expiration of the term for bringing a person to disciplinary liability cannot be considered a reason for refusing to launch an official investigation. It is only a reason not to apply disciplinary sanctions. The information collected during the official investigation could be used in the interests of criminal proceedings.

Criminal proceedings on abuse in office and disclosure of pre-trial investigation data

At the off-site meeting of the anti-corruption committee on July 15, it was reported that on April 24, NABU director Semyon Kryvonos had received a detective’s notice about the leak of information in criminal proceedings related to embezzlement within the Large Construction program. 

However, the pre-trial investigation based on this information was launched only on May 10, 2024. It is conducted based on the fact of possible abuse of authority and office by NABU officials and their disclosure of pre-trial investigation data, i.e., under Art. 364, part 2 and Art. 387, part 2 of the Criminal Code of Ukraine. 

Article 364 of the Criminal Code of Ukraine provides for liability for abuse of office, i.e., unlawful use of one’s official position to obtain an improper advantage, which caused grave consequences. Therefore, the detectives are to establish whether there was an unlawful advantage for the participants in the NABU case, whether there were abuses of office (for example, in the form of disclosure of official information), as well as whether there were grave consequences in the form of property. The latter may cause many problems because, according to journalistic investigations, the leak was about information on searches. And failure to conduct a search could hardly have directly led to any economic losses on the part of the state. 

Another article that is being investigated, 387 of the Criminal Code of Ukraine, provides for liability for the disclosure of data of criminal intelligence activities, pre-trial investigation, made by special entities, for example, a judge, a prosecutor, an investigator, an interrogator, or an officer of criminal intelligence authority. 

Thus, the detectives are to establish whether there was a “leak” of any information from the pre-trial investigation in the case of embezzlement within the Large Construction program. They are also to find out if the offender is a prosecutor, an investigator, an interrogator, or an officer of criminal intelligence authority. Give that the NABU is a central body of the executive power with a special status, and not a criminal intelligence authority, an investigator or an interrogator may be brought to liability for this, but it will be difficult to bring one of the managers to justice. 

From the information provided by Semyon Kryvonos at the meeting of the anti-corruption committee, we can conclude that it took the NABU, together with the SAPO, a little too long to decide on the registration of criminal proceedings and launching of the investigation—almost 12 working days. Such a delay is unclear. After all, if the Internal Control Department (ICD) of the NABU had signaled the SAPO head about the whistleblower’s report immediately, the SAPO head could have entered the information into the Unified Register of Pre-Trial Investigations almost on the same day. That means initiating criminal proceedings based on this fact, as well as assigning the jurisdiction to the detectives of the NABU ICD instead of the SBI for the sake of an effective investigation. 

Neither is it clear why the whistleblower, being a NABU detective, did not start an investigation into the “leak” on his own, since it was within his powers. It is probably because NABU detectives only have relative independence, given that the entry of information into the Unified Register of Pre-Trial Investigations still must be approved by the management.

Instead of conclusions

The problem of information leakage in the NABU is not new, and it appeared long before journalists started covering it. 

In December 2023, by the order of Gizo Uglava, a working group was established, which had the following objectives:

• to analyze the existing information handling processes, to identify possible internal and external sources of leakage;
• to analyze the legal framework regulating the circulation, storage, and disposal of information;
• to study the procedures for information exchange between independent structural divisions and, if necessary, propose ways to optimize them;
• to develop a procedure for responding to facts of information leakage;
• to determine the grounds for bringing a person to disciplinary liability for failure to take response measures in case of information leakage. 

For a long time, Uglava headed the working group; in March 2024, Roman Osypchuk, head of the Internal Control Department, replaced him; and in May 2024, Uglava was removed from the working group. 

We appealed to the NABU about the results of the activities of this working group. In response to our request, the NABU reported that, by the order of the director of the National Bureau of August 8, 2024, the register of risks of leakage or information disclosure had been approved, compiled based on the results of the working group’s activities. This looks like a step towards solving the problem of maintaining secrecy in the operation of detectives. However, it is currently unknown how exactly such actions will help in the future. Although this is precisely the essence of the issue, which caused the scandal in the NABU. 

Now, we are witnessing the first steps taken in the scandal with leaks, but they look more like a reaction to public pressure than comprehensive solutions. 

Perhaps the external audit of the NABU, which should take place soon, will help with the solution. The management of the body must make efforts and engage in rectifying such deficiencies now because they directly affect the quality of the pre-trial investigation, the subsequent fair punishment of guilty persons, and, ultimately, the overall independence of the NABU.