Draft law No. 13533 registered by the President of Ukraine is aimed at restoring the institutional independence of the National Anti-Corruption Bureau of Ukraine and the Specialized Anti-Corruption Prosecutor’s Office.
The document provides for an almost complete return to the legal regime that existed before the adoption of Law No. 4555-IX, but the text also contains nuances that may have a negative effect.
The NABU and the SAPO have already responded positively to these initiatives of the President.
Brief conclusions:
– the draft law restores the exclusive jurisdiction of the NABU and prohibits the transfer of cases to other bodies;
– the head of the SAPO regains independence in managing the prosecutor’s office without control from the PGO;
– the PGO loses access to NABU case files and the right to give instructions to detectives;
– the possibility of appointing prosecutors without competition is not eliminated;
– the draft law contains provisions on polygraph examinations, in particular, regarding NABU employees and their verification by the SSU. This may have unpredictable consequences in practice.
What do we recommend?
– To the Verkhovna Rada to adopt the draft law as a basis and as a whole to quickly restore the independence of the NABU and the SAPO.
– A separate draft law should eliminate the possibility of appointing prosecutors without competition.
– Take into account the recommendations of international auditors to enhance the operation of the NABU.
Key provisions of the draft law
Restoration of exclusive jurisdiction of the NABU. The draft law prohibits entrusting other pre-trial investigation bodies with pre-trial investigation of criminal offenses under the jurisdiction of the NABU, except in the case of objective reasons under martial law. Only the Deputy Prosecutor General — the head of the Specialized Anti-Corruption Prosecutor’s Office (SAPO) or the Prosecutor General will have the right to entrust such a task.
Restrictions on the powers of the Prosecutor General’s Office (PGO). The Prosecutor General loses the right to instruct the heads of the NABU detective units and the internal control unit to provide pre-trial investigation materials in writing. NABU detectives are obliged to execute orders and instructions of SAPO prosecutors only.
Autonomy of the SAPO management. The head of the SAPO is empowered to independently manage the activities of the prosecutor’s office without unreasonable control by the PGO. The Prosecutor General and their other deputies, except for the Head of the SAPO, will not have the right to give instructions to SAPO prosecutors. Written administrative orders on the organization of the SAPO’s activities will be issued with the mandatory approval of the Head of the SAPO.
Restoration of procedural powers. The head of the SAPO regains the right to independently approve motions to extend the pre-trial investigation period to twelve months in NABU cases, as well as to notify senior officials of suspicion. The law also restores the possibility to conduct searches in corruption proceedings without the decision of an investigating judge in urgent cases related to saving lives and property, or to directly prosecute persons suspected of committing a criminal offense.
Removal of the “single window” for closing cases. The provision that the Prosecutor General can close a case against a senior official bypassing prosecutors or the SAPO leadership is removed.
Problematic provisions of the President’s draft law
Personnel policy. The draft law does not eliminate the possibility of appointing prosecutors of the PGO and regional prosecutor’s offices without a competition. The possibility of terminating powers of a prosecutor in an administrative position in case of dissolution of the prosecutor’s office, reorganization, or change of structure remains.
Doubtful control mechanisms. The document provides for polygraph examinations, in particular, of NABU employees every two years for “actions aiding the aggressor state.” The validity of such examinations is questionable. At the same time, the verification of NABU employees by the SSU mentioned in the draft law does not specify the mechanism of how such verification will be conducted, which may have unpredictable legal consequences.
Declarative provisions. Many of the final provisions of the draft law are declarative in nature, in particular, regarding the strengthening of extradition and asset recovery. However, its practical implementation may make sense, as it allows to some extent to take into account the recommendations of international auditors to strengthen the work of the NABU. [1] The ban on NABU employees traveling abroad during martial law also raises questions about its necessity, as it is unclear why such a ban is imposed exclusively on NABU employees, but does not mention employees of other bodies referred to in the final provisions.
Conclusions and recommendations
Draft law No. 13533 is a necessary compromise step to restore the institutional independence of the anti-corruption agencies after the harmful changes introduced by law No. 4555-IX. The document restores the exclusive jurisdiction of the NABU, limits the ability of the GPO to interfere with the activities of the anti-corruption agencies and restores the procedural autonomy of the SAPO.
At the same time, the draft law does not solve all systemic problems in the functioning of the NABU and the SAPO. In order to fully restore the effectiveness of the anti-corruption agencies, it is necessary to work separately on eliminating the possibility of appointing prosecutors without competition, removing dubious control mechanisms, and taking into account the recommendations of international auditors to enhance the operation of the NABU.
TI Ukraine recommends adopting the draft law as a basis and as a whole to quickly restore the previous legal regime. But after that, we are convinced that the parliament and relevant experts should continue to work on additional changes to improve the system of anti-corruption bodies.
