Plans to Enhance SAPO’s Independence: Legal Analysis

On September 15, the Verkhovna Rada registered a government draft law No.10060, aimed at the long-awaited strengthening of the independence of the Specialized Anti-Corruption Prosecutor’s Office and improving the procedure for competitive selection for administrative positions in the SAPO and positions of prosecutors.

Transparency International Ukraine experts have repeatedly stressed the need for such changes in the legislation. Therefore, we analyzed this new document with great interest.

How is the work of the SAPO regulated now?

Currently, the Specialized Anti-Corruption Prosecutor’s Office is an independent unit within the Prosecutor General’s Office. That is, it is not a separate legal entity and depends on the Prosecutor General’s Office in many issues of organizing its work. For example, the SAPO does not have a document management department, so all its correspondence passes through the records management office of the Prosecutor General’s Office.

The same applies to procedural issues because when the authority of the previous head of the SAPO ended, the NABU detectives had to get approval for all the motions for a search of special subjects (for example, judges) with the Prosecutor General.

As of now, there are no provisions in the Law of Ukraine On the Prosecutor’s Office that would regulate the procedure for conducting an external independent assessment of the activities of the Specialized Anti-Corruption Prosecutor’s Office, and disciplinary proceedings against SAPO prosecutors are carried out in a general manner.

There are also questions to the procedure for holding a competition for administrative positions, that is, the head of the SAPO, their deputies, and heads of departments. This is important because the recent competition for the head of this institution turned out high-profile and by no means smooth. It lasted almost a year, and when the results of the comprehensive assessment determined Oleksandr Klymenko as the winner, the commission refused to publish the results and officially announce them for several months.

How does the analyzed draft law propose to correct these shortcomings?

The provisions of the draft law relate to several areas:

• functioning of the SAPO as a separate legal entity in the system of prosecutorial bodies;
• the procedure for selecting SAPO prosecutors, their number, and holding a competition for administrative positions;
• conducting an external audit of the SAPO’s performance;
• salaries of SAPO prosecutors, as well as the procedure for disciplinary proceedings against them;
• principles of independence of the SAPO head and the possibility of full-fledged exercise of their powers by deputies.

Some of these changes can be evaluated positively, for example, the SAPO becoming a separate legal entity in the system of prosecutorial bodies. This is one of the foundations for ensuring the independence of the institution, which we, for our part, noted in the study of the capacity of anti-corruption infrastructure bodies in 2020.

The procedure for the formation and functioning of the commission to select persons for administrative positions in the SAPO (SAPO head and their deputies) is also to be improved. Thus, the organization and holding of the competition will be conducted by the selection commission, which will include:

1. three persons appointed by the Prosecutor General on the basis of proposals of the Council of Prosecutors of Ukraine;
2. three persons appointed by the Prosecutor General on the basis of proposals of international and foreign organizations that, under international or interstate agreements, provide Ukraine with international technical assistance in the field of preventing and countering corruption during the past 3 years until the expiration of the term of office of the head of the SAPO or until the day of early termination of their powers.

If it is prosecutors and heads of departments that are selected, the selection commission shall consist of three persons appointed by the SAPO head and three persons appointed by the SAPO head based on proposals of international partners. The requirements for the members of the selection commission and the matter of the quorum will be the same in both cases.

This is a similar procedure to other competitions that have proven to be quite effective, such as for the position of the NABU or NACP head. 

However, there is a certain risk here. If the commission is unable to form a quorum for 10 days, then the meeting is considered authorized if at least 3 members of the selection commission are present, of which two are appointed based on the proposals of international organizations. The rule applies when a quorum is not assembled for 2 consecutive meetings. In this case, the decision is considered adopted if at least two members voted for it. This is a questionable suggestion because two people are not even half of the commission. In no other competition in the anti-corruption authorities is there such a low threshold for decision-making.

Another change concerns the establishment of the Specialized Disciplinary Commission of SAPO prosecutors. It is proposed to introduce 6 persons to the Specialized Disciplinary Commission, which will be determined by the Prosecutor General on the basis of proposals by international and foreign partners.

At the same time, members of this commission may be citizens of Ukraine who:

• speak the state language,
• have a higher legal education and at least 10 years of experience in the field of law,
• have an impeccable business reputation, high professional and moral qualities, public esteem,
• meet the integrity criterion,
• and have at least 2 years of experience in preventing or countering corruption.

The creation of such a body is relevant because the disciplinary responsibility of the prosecutor is one of the means of ensuring the effectiveness of the work of prosecutors.

The draft law also proposes to introduce a mandatory external independent audit of the SAPO every two years. It is assumed that the commission will consist of three persons, who will be appointed by the Prosecutor General on the basis of proposals by international and foreign partners. The conclusion about the ineffective activities of the SAPO should be the basis for the dismissal of the SAPO head.

In our opinion, this is also an appropriate and quality proposal, and a similar audit has already been conducted, for example, regarding the NACP and provided for the NABU.

As for the procedure for appointing the SAPO head and the first deputy, it will include the following steps. Based on the results of the assessment of the integrity and competency of the candidates, the selection commission presents two candidates for the Prosecutor General to consider; the latter must choose the SAPO head and his/her first deputy out of the two candidates. The Prosecutor General has three days to select and appoint the SAPO head to the position. According to the current rules, the SAPO head is the winner in the rating by stages of the competition. It is worth considering the option of appointing candidates to positions according to the existing rating after all stages of the competition to minimize the possibility of any interference and preserve the right of the selection commission to determine the best candidate.

The draft law also proposes to establish the official salary of SAPO employees:

• for the SAPO head — at the level of 75 subsistence minimums of able-bodied citizens as of January 1 of the calendar year,
• for the first deputy and the deputy — at the level of 60 subsistence minimums of able-bodied citizens,
• for a SAPO prosecutor — at the level of 40 subsistence minimums.

This is an important change to ensure the independence of the SAPO by providing decent financial security. 

In the absence of the SAPO head, all their powers should be fully exercised by the first deputy. In the case of absence of the latter — by the deputy head of the SAPO. This is important to ensure a quality investigation within a reasonable timeframe.

There are other problems that are not caused by this draft law, but directly affect the procedural independence and autonomy of the SAPO. Unlike the Prosecutor General, the head of the SAPO does not get the opportunity to appeal to the competent authority of a foreign state with a request for extradition, which is currently regulated by Article 575 of the Criminal Procedure Code (CPC). This is an important authority because many persons involved in SAPO cases are hiding abroad: oligarch Oleksandr Onyshchenko, MP Vladyslav Trubitsyn, ex-head of the NBU Kyrylo Shevchenko, and many others. Accordingly, there is a risk that the Prosecutor General will deliberately delay the signing of the request or unreasonably refuse it, as was the case with Oleh Bakhmatiuk. Neither does the SAPO head have the authority to consider and decide 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. This authority continues to be assigned to the Prosecutor General’s Office (Article 571, part 2 of the CPC).

In addition, the draft law does not amend a number of provisions related to criminal proceedings against MPs, which have been repeatedly emphasized by experts, for example:

• information that may indicate the commission of a criminal offense by a Member of the Parliament of Ukraine is still entered in the Unified Register of Pre-Trial Investigations by the Prosecutor General (acting Prosecutor General), but not by the SAPO head or their deputies (Art. 482-2, part 1 of the CPC of Ukraine);
• the Prosecutor General must also approve the request on actions that, in accordance with the law, restrict the rights and freedoms of a Member of the Parliament of Ukraine, whose consideration is assigned to the investigating judge (Art. 482-2, part 2 of the CPC of Ukraine). These are permission to detain, choosing an interim measure in the form of detention or house arrest, search, violation of the secrecy of correspondence, telephone conversations, telegraphic and other correspondence, as well as the application of other measures including covert investigative (search) actions;
• Only the Prosecutor General, and not the SAPO head, can serve the Commissioner for Human Rights with charges of committing a criminal offense (Article 20 of the Law of Ukraine On the Commissioner for Human Rights of the Verkhovna Rada of Ukraine).

This is a serious problem given the significant volume of cases with MPs involved in the proceedings of the SAPO. For example, in 2022, the SAPO referred many cases of false declaration of MPs to the court: Marharyta Shol, Artur Herasymov, Iryna Konstankevych, and many others. It can be assumed that the number of such cases will significantly increase after the resumption of the obligation to declare for the first time since the beginning of the full-scale invasion. Therefore, these changes are critically necessary, and their relevance will only increase in the future. 

Conclusions

Transparency International Ukraine supports the adoption of draft law No.10060 as a basis, with a possibility of finalization. 

In our opinion, this document is really designed to solve urgent tasks — to improve the regulatory framework for the operation of the SAPO. The following proposals are definitely positive:

• to establish a salary sufficient for a decent life for SAPO employees;
• to formally separate the SAPO from the Prosecutor General’s Office;
• to create a separate disciplinary body for SAPO prosecutors;
• to consider the problems that arose with the delay of the previous competition for the SAPO head;
• to determine that the deputy head of the SAPO shall fully exercise the powers of the SAPO head in their absence; 
• to provide for an external, independent audit of the SAPO.

However, in order for the SAPO’s operation to be more effective, it is necessary to consider other problems that this draft law does not solve, as well as the risks that it contains.

Among them are:

• the ability of the SAPO head to initiate criminal proceedings against special entities (for example, MPs) independently;
• the head of the SAPO having procedural powers to commit those actions that are exclusively within the competence of the Prosecutor General, for example, to approve a motion for permission to detain, choose an interim measure in the form of detention or house arrest, search, violation of the secrecy of correspondence, telephone conversations, telegraphic and other correspondence, as well as the application of other measures, including covert investigative (search) actions, which, in accordance with the law, restrict the rights and freedoms of a member of the Parliament of Ukraine;
• the possibility of adopting a decision by three members of the commission on the selection for administrative positions of the SAPO in certain circumstances, of which two members are delegated according to the proposal of international partners.