After the Revolution of Dignity, anti-corruption reform began in Ukraine. It provided for the creation of a new ecosystem of bodies that would resist corruption. Thus, the National Anti-Corruption Bureau (NABU), the Specialized Anti-Corruption Prosecutor’s Office (SAPO), the National Agency on Corruption Prevention (NACP), the Asset Recovery and Management Agency (ARMA), and the High Anti-Corruption Court (HACC) were created. Each of these institutions performs different functions.
In particular, the NABU is investigating corruption crimes. However, two other bodies have the competence (jurisdiction) to investigate corruption crimes: the State Bureau of Investigation (hereinafter referred to as the SBI) and the National Police (hereinafter referred to as the NPU). Read on to find out how their work differs.
Jurisdiction of the NABU
The NABU prevents, detects, stops, and investigates high-profile corruption, which is distinguished by a substantive-subjective feature. A substantive feature is attributed to the nature of the crime committed, i.e., its classification. A subjective feature is related to the person who committed a criminal offense, their status, official position.
NABU’s jurisdiction, or specialization of this body, includes specific corrupt criminal offenses, such as abuse of influence or laundering of proceeds from crime. The full list of criminal offenses investigated by the NABU can be found on their website.
However, it’s not that simple. If the NABU investigated absolutely all criminal proceedings under these articles, the work of this body would be blocked: detectives would simply not be able to cope with the volume of workload. Therefore, the legislator has provided for several conditions, and the presence of at least one of them means that the proceedings are under investigation by the NABU. These are the substantive and subjective features discussed above.
The first condition is the volume of the subject matter of the crime or the damage caused by it. Thus, the proceedings are under investigation by the NABU if the volume of the subject matter of the crime or the damage caused by it is 500 or more times higher than the subsistence minimum for able-bodied persons established by law at the time of the crime. As of 01.01.2022, this amount is UAH 1,240,500.
The second condition is a subjective feature because if the crime was committed by another person — not from the list of those under investigation by the NABU — the proceedings will be transferred to another pre-trial investigation body. The persons under investigation by the NABU, among others, are:
- the President of Ukraine, whose powers have been terminated;
- presidential advisors and assistants;
- members of the Cabinet of Ministers;
- Prosecutor General, their first deputy and deputies;
- officials whose positions are classified as category “A” (heads of bodies whose powers extend to the entire territory of Ukraine), etc.
Find out the full list of officials under investigation by the NABU here. The investigation of corruption crimes committed by other officials and civil servants is conducted by the SBI and the NP. Read more about this below.
The last condition is a situation in which an offer, a promise, or a provision of a bribe to an official or abuse of influence was committed regarding an official from the list of persons under investigation by the NABU.
An exception to these three conditions of jurisdiction may be a situation when the prosecutor refers cases to the NABU only under a substantive feature, that is, without considering the person who committed such an offense. This is possible if serious consequences have been caused or could have been caused to the legally protected freedoms and interests of the individual, as well as to the state or public interests.
In general, the SAPO prosecutor is appointed in cases investigated by the NABU. It provides procedural guidance and, upon completion of the pre-trial investigation, sends the indictment to the HACC, where it ensures public prosecution. Only the HACC can consider NABU-SAPO cases.
Jurisdiction of the SBI
The SBI investigates crimes committed by high-ranking officials, law enforcement officers, and judges, as well as persons whose position is classified as category “A,” except in cases when the pre-trial investigation is referred to the jurisdiction of the NABU.
In other words, the competence of the SBI is based solely on the subjective feature. In other words, the SBI investigates any crimes committed by high-ranking officials, including corruption crimes, if none of the conditions under the NABU’s jurisdiction is present. For example, if the NABU director is suspected of committing a corruption crime, then this case will be investigated by the SBI. Read the full list of persons under investigation by the SBI here.
The prosecutor in cases of the SBI must be an employee of the Prosecutor General Office, the regional prosecutor’s office, or the Kyiv City Prosecutor’s Office. After referring the indictment, the case is considered according to the general rules, that is, by the court within whose territorial jurisdiction the criminal offense was committed. This may be the Bilotserkivskyi City District Court of the Kyiv oblast or, for example, the Solomianskyi District Court of Kyiv, but not the HACC.
Jurisdiction of the NPU
Investigative bodies of the National Police conduct pre-trial investigation of criminal offenses, except for those that are referred to the jurisdiction of other pre-trial investigation bodies. That is, the police investigate everything that does not “reach” the SBI and the NABU.
Upon the completion of the pre-trial investigation, the National Police bodies draw up an indictment, according to which a person is officially charged, and which is agreed or independently drawn up by the prosecutor and is referred to the court. However, not by criminal proceedings alone: The NPU also draws up administrative protocols on the commission of administrative offenses related to corruption.
The prosecutor for NPU cases can be not only an employee of the regional prosecutor’s office or of a higher rank, but also a prosecutor of the district prosecutor’s office. Then the case, again, will be considered by local general courts.
Jurisdiction of the SBU
The SBU does not investigate corruption crimes! Despite this, the Main Directorate for Combating Corruption and Organized Crime has been operating in the SBU since the 1990s. Now, it actually duplicates the activities of other bodies (NABU, SBI).
Such a unit carries out its activities on the basis of the provisions of the Criminal Procedural Code regarding the right of an investigator to conduct pre-trial investigation of crimes that are not under their investigation until the prosecutor determines another jurisdiction. The prosecutor is given 5 days for such an appeal, and 10 days for making a decision. Obtaining evidence by an improper subject may be grounds for the inability of the court to consider it, so, it is crucial to reform the SBU, including the specified unit.
Thus, the NABU investigates corruption crimes of high-ranking officials, the SBI investigates not only corruption, but also any other crimes of officials, if there is none of the conditions for the jurisdiction of the NABU, and the NPU investigates what does not belong to the jurisdiction of the SBI and the NABU. After the pre-trial investigation, the HACC considers NABU cases, and the cases of the SBI and the NPU are considered by the courts of general jurisdiction.
In this way, the competence of these three bodies is clearly delineated. To eliminate the risk of declaring evidence inadmissible and to ensure that corrupt officials are brought to justice, it is necessary to adhere to the rules of jurisdiction.
The competence of the NABU, the SBI, and the NPU is clearly delineated. To eliminate the risk of declaring evidence inadmissible and to ensure that corrupt officials are brought to justice, it is necessary to adhere to the rules of jurisdiction.