Trophies of anti-corruption front

Knight NABU

Investigates corruption crimes of senior officials

Trophies:

Weak points

*According to a comprehensive assessment of the study of the capacity, management, and interaction of anti-corruption infrastructure bodies conducted by Transparency International Ukraine in 2020 with the support of the USAID_SACCI project.

3,6 / 5*

There is a possibility of interference in the course of high-profile cases on the part of the Prosecutor General’s Office. A prime example is the case of Oleh Tatarov, deputy head of the Presidential Office. On December 1, 2020, Iryna Venediktova changed the group of prosecutors and delayed serving Tatarov with charges for 17 days. Already on December 23, deputy Prosecutor General Oleksii Symonenko referred criminal proceedings on suspicion of Tatarov from the NABU to the Security Service of Ukraine. Since then, this investigation has reached a dead end.

It has reliable financial background and technical base for countering corruption. Detectives of the anti-corruption troops are selected transparently, considering their integrity and qualifications. They cannot just be fired because there is a safeguard, apart from the law, — the Civil Oversight Council. It also ensures that the NABU performs its work honestly and impartially.

The knight actively interacts with the National Bank, the Anti-Monopoly Committee, the State Border Service, Tax and Customs Service.

However, other courts sometimes illegally interfere in NABU proceedings and try to change their jurisdiction, although detectives investigate cases that only HACC judges are to consider. For example, when the Pechersk District Court of Kyiv obliged the Prosecutor General to take the case from the NABU on suspicion of the head and judges of the Kyiv Administrative Court (KAC) and the State Judicial Administration (SJA) head, and refer it to another law enforcement agency.

Readiness

According to the law, the body can independently conduct tapping of potential corrupt officials, but in practice it is limited in this because it does not have access to special equipment. The new law on the NABU should solve this problem. Previously, the NABU detectives conducted wiretapping only under the control of the Security Service of Ukraine, which, unfortunately, led to information leaks.

It works in tandem with the SAPO because without professional procedural guidance of the prosecutor, it is impossible to punish a corrupt official in court. In recent years, this tandem has been working smoothly and quickly.

It has evolved from a law enforcement agency to a central executive body with a special status, meaning it is now subordinate to the government, and not the president. Prior to that, the Constitutional Court twice declared certain provisions of the law on the NABU unconstitutional, in particular, regarding the appointment of its director by the President of Ukraine. The updated law on the NABU has settled the issue of the institution’s status and eliminated non-compliance with the Constitution.

The new law has also clarified how the selection process for the NABU head will be conducted; the introduced changes will ensure transparency of the procedure and help avoid delaying the competition.

The Bureau quickly and fully notifies of its work. Law enforcement agencies usually report news with delays and using complex language. Instead, the NABU decided to make its activity truly transparent, and together with the SAPO knight, it created a clear algorithm of actions for preparing and publishing news about pre-trial investigations. This is how we find out about the new high-profile cases from the primary source.

Staffing level

In total as of 30.06.2021:

In the first half of 2021:

indictments referred to court

accused persons

notes of suspicion

investigations started

25

43

42

336

detectives

employees

286

665

guilty verdicts

indictments referred to court

accused persons

notes of suspicion

criminal proceedings in progress

56

325

584

397

879

vacancies for detective positions

27

In 2022, a competition to elect a new head will start. The change of the director may become a risk for the operation of the NABU if the competition will be deliberately delayed and conducted non-transparently. Fortunately, the updated law on the NABU guarantees the participation of international experts, who must ensure that the entire process is not biased.

The Bureau cannot file lawsuits in court to annul illegal agreements of state-owned enterprises and recover losses.

Qualitative

Quantitative

Uniqueness

It has reliable financial background and technical base for countering corruption. Detectives of the anti-corruption troops are selected transparently, considering their integrity and qualifications. They cannot just be fired because there is a safeguard, apart from the law, — the Civil Oversight Council. It also ensures that the NABU performs its work honestly and impartially.

The knight actively interacts with the National Bank, the Anti-Monopoly Committee, the State Border Service, Tax and Customs Service.

However, other courts sometimes illegally interfere in NABU proceedings and try to change their jurisdiction, although detectives investigate cases that only HACC judges are to consider. For example, when the Pechersk District Court of Kyiv obliged the Prosecutor General to take the case from the NABU on suspicion of the head and judges of the KAC and the SJA head, and refer it to another law enforcement agency.

Summary

KNIGHT SAPO

Performs procedural management of NABU cases and presents public prosecution in court

Trophies:

*According to a comprehensive assessment of the study of the capacity, management, and interaction of anti-corruption infrastructure bodies conducted by Transparency International Ukraine in 2020 with the support of the USAID_SACCI project.

3,3 / 5*

While the institution is without a head, its functions are performed by former deputy Maksym Hryshchuk. However, Prosecutor General’s Office deals with many important issues now, namely, Iryna Venediktova and her deputies, since the powers of the acting prosecutor are limited by law. Therefore, they have a direct influence on decision-making in corruption cases and can interfere in them. However, when the selection commission elects the head of the SAPO, this person will have the independence guaranteed by law and weapons against corruption.

The SAPO is not your usual knight. What distinguishes it from others is that it is an independent structural division of the Prosecutor General’s Office. Under the law, the SAPO should be independent of the Prosecutor General’s Office, but in practice, many people there want to influence the body’s work. For example, as it was in the case of MP Yurchenko, when the Prosecutor General saw no reason for suspicion for almost four days, until the President pointed out these reasons.

The knight has good material and technical support. Moreover, in 2020, the number of SAPO troops increased, which can strengthen the knight’s position on the battlefield.

The institution has lacked a head and first deputy for more than a year. The competition is almost at the finish line, but it will not end due to numerous delays. At the same time, fast and transparent election of the SAPO head is the request from the public and Ukraine’s obligation to international partners, recorded in the agreements between Zelenskyy and Biden, as well as in the Memorandum of Ukraine with the IMF.

During the work of the SAPO, MPs, prosecutors, lawyers, and heads of government agencies have been convicted. Thus, SAPO prosecutors have shown that each corrupt official must be punished despite their status.

It promptly and fully reports on the progress of the investigation of corruption crimes and reports news from the courtroom about the decision on those accused of corruption.

prosecutors

employees

51

60

— with release from serving a sentence with probation)

of them with a penalty of imprisonment (of which

guilty verdicts

indictments were referred to court from 2018 to October 2021

12

47

250

prosecutor vacancies

4

38

Uniqueness

Quantitative

READINESS

Staffing level

Qualitative

Weak points

SUMMARY

The absence of a Head makes SAPO’s work very difficult. It is this knight that decides whether the cases of corrupt officials will go to court or not. Therefore, his role in the work of the anti-corruption ecosystem is crucial. To urgently solve the problems of the institution, an independent leader has to be elected to ensure the effective operation of the body. When the SAPO understands that it has reliable ground under its feet, then, we are certain, it will reach its full potential.

However, despite the specified problem, the institution shows good results of its work. This, in particular, is caused by the effective interaction of the SAPO with other bodies of the anti-corruption ecosystem.

KNIGHT NACP

Checks declarations, forms Ukraine’s anti-corruption policy, protects whistleblowers, monitors the financing of political parties and the prevention of conflicts of interest, and identifies corruption provisions in legislation, maintains the register of corrupt officials

Trophies:

WEAK POINTS

**According to the analysis of the assessment of recommendations on the ability, management, and interaction of the NACP in 2021, with the support of the USAID_SACCI project.

3,6 / 5**

The NACP should monitor the lifestyle of senior officials because they can declare low incomes and at the same time, for example, buy apartments in elite residential complexes. However, the knight does not have clear instructions for conducting such monitoring. Instead, the NACP created its own recommendations that were not even submitted for state registration to the Ministry of Justice. Moreover, the monitoring does not have clear deadlines and does not define the powers of NACP employees that they can use during monitoring. This, in the end, can create dangers regarding human rights violations.

You can quickly find out what the knight is doing to fight corruption because the activity reports are published regularly. However, such reports sometimes are incomplete. Moreover, there is a high-quality election procedure of a professional and uncorrupted military leader because the selection commission of the NACP head developed clear criteria for this. Unfortunately, the National Agency does not conduct proper large-scale exercises for its soldiers. However, a Public Council functions that controls the work of the body.

The knight created an internal control unit for employees, which checks them for integrity. However, this NACP division checks the declarations of employees of the Security Service of Ukraine (SBU), NABU, and other intelligence officers through hidden procedures and contrary to the law. The problem is that in accordance with the law and prevention of conflicts of interest, this should be done by ordinary employees of the NACP according to the published procedures, and not by the internal control department, which is now headed by an ex-employee of the SBU.

READINESS

In September 2018, the NACP launched the system of logical and arithmetic control of the submitted electronic declarations (LAC), which automatically calculates the risk rating of a particular declaration. Since the launch, these rules have been public, but already under the new leadership of the NACP in 2021, automated checks have started contradicting the law; it is impossible to understand exactly how such verifications are conducted. Since the summer of 2021 and until now, the new LAC rules are concealed contrary to the law, which expectedly caused indignation of the public.

In 2020, a full upgrade of the knight took place. Version 2.0 provided for a new approach to management: instead of a 5-member board, which often could not make a single decision and was bias, an independent commission elected one Head — Oleksandr Novikov.

The reboot of the body also triggered other changes: the NACP got access to all the necessary registers, launched the POLITDATA registry, which has simplified the reporting process for political parties, has developed an Anti-Corruption Strategy for 2021-2025.

During the year, the knight was able to overcome the consequences of the crisis of constitutional justice. On October 27, 2020, the Constitutional Court canceled criminal liability for lying in declarations, as well as the NACP’s powers to check declarations, along with open access to them. In two days, the Cabinet of Ministers made a decision, which obliged the NACP to restore access to declarations and unblocked the conduct of special verifications. In December 2020, all NACP’s powers were restored, and in March, the Agency began checking the declarations of judges and judges of the Constitutional Court, although the Constitutional Court and the High Council of Justice refused to coordinate the relevant procedures.

STAFFING LEVEL

of them — in 2021

individuals, included in the Register of Corrupt Officials since February 4, 2019

full checks in 2021

precepts demanding to eliminate violations of the rights of whistleblowers were made in 2020-2021

6 248

16 882

7

head

employees

1

333

checks in progress

court cases on the side of whistleblowers

verified declarations in 2017-2021

444

806

3407

Qualitative

QUANTITATIVE

UNIQUENESS

deputies

3

persons check declarations

40

vacancies

75

98

The knight does not publish all accepted documents and their drafts and does not always organize open public discussions before adopting important regulatory and legal acts.

*From 2015 to 2020, no expert evaluation was conducted, as it was not the priority

anti-corruption expert evaluations in 2020*

anti-corruption expert evaluations in 2021

40

89

SUMMARY

After the reboot of the NACP, a number of changes took place which help better prevent corruption at different levels. However, the NACP’s operation can be improved if the body becomes more open. To achieve this, it is necessary to conduct public consultations before making important decisions and transparent competitions for vacant positions, as well as publish the adopted documents and projects of the National Agency.

On November 10, 2021, the Cabinet of Ministers determined the NACP auditors, the assessment of the institution’s work should take place in 2022. An external audit of the Agency’s activity will be conducted for the first time, and this is the most important step because such an audit with the participation of international members of the commission is one of the safeguards for possible inefficiency and abuse in the work of the NACP.

KNIGHT ARMA

Recovers seized property and manages it

Trophies:

Weak points

*According to the analysis of the assessment of recommendations on the ability, management, and interaction of the NACP in 2021, with the support of the USAID_SACCI project.

3 / 5*

Due to the imperfection of the laws, the ARMA cannot participate in court sessions that decide on the transfer of assets, as well as contest court decisions.

The Register of Seized Assets has not been fully operational.

The ARMA is a prototype of a European warrior who must have good management skills. However, it is still difficult for the knight to work with high-profile assets, such as the Mezhyhirya residence. Because of this, he sometimes got into corruption scandals.

Still, the knight has developed a clear strategic development plan and supported himself with a good material and technical base. It has access to several hundred important registers and databases, including NACP registers, so it quickly finds the necessary information. However, its territorial divisions are understaffed.

In addition, the ARMA army does not have a code of conduct and ethics, so there is a risk of abuse. There are no internal and external mechanisms yet. Even though an independent external audit was conducted in the ARMA twice, there is no information for the last two years yet.

Readiness

The institution has been without a head for almost two years. There are certain shifts — the competition for the selection of the head has started, and 12 candidates have already submitted their applications. However, this number of candidates is not enough for a decent level of competition. In addition, in the Procedure of the competition, the criterion of integrity was replaced with moral and business qualities, and this only aggravates the reservations about the results of the competition.

In 2021, the Agency was finally granted the improved legislation. Now, the ARMA can sell movable seized property that quickly loses its value or is subject to rapid damage, as well as movable property whose storage costs for one calendar year amount to more than 50% of its value.

It is the court that will now have the right in its decision to transfer the ARMA assets for management to determine the method of management — sale or management. The threshold for the value of assets that are transferred to the Agency will be at the level of 200 subsistence minimums for able-bodied persons. The MPs also brought the ARMA law on this issue into accordance with the corresponding provision of the current Criminal Procedural Code.

The knight uses more than 300 information and reference systems, registers, and data banks to recover assets.

Asset owners have increased confidence in the work of ARMA. The knight can only manage property, money, or land plots if he receives permission from investigating judges, courts, and the owners themselves. In November 2021, the owners voluntarily transferred foreign currency to the knight for the first time, which in hryvnia equivalent is more than UAH 600,000.

STAFFING LEVEL

in the central office

employees:

160

221

UNIQUENESS

vacancies

58

Qualitative

QUANTITATIVE

in territorial offices

61

The following amount has been transferred to the national budget of Ukraine by asset managers from managing seized assets:

agreements concluded with managers of the seized assets

mln f cash was received for management (01.01.2017 – 18.11.2021)

mln,

mln,

15

€1,5

$2

₴477

mln

< ₴ 73

Summary

No knight can fight to the fullest when there is no commander. The competition for the election of the ARMA head has been delayed for two years, so the selection commission should immediately bring the competition to its logical conclusion, and then — provide guarantees against unjustified dismissal of management. This is the only way the knight can independently manage large assets.

Even despite the adopted changes in legislation, the potential of the ARMA is not fully reached. There is still a problem of blocking the ARMA’s work by administrative and economic courts, and the matter of planning before transferring assets for management.

Ideally, the ARMA should be a service body that systematically preserves the economic value of assets, and not a storage room for seized apartments, land plots, cars, and other things.

KNIGHT HACC

Administrates justice in high-profile corruption cases

Trophies:

Weak points

*According to a comprehensive assessment of the study of the capacity, management, and interaction of anti-corruption infrastructure bodies conducted by Transparency International Ukraine in 2020.

4 / 5*

There is pressure from the High Council of Justice (HCJ), which affects judges through the mechanism of disciplinary proceedings. For example, HACC judge Tymur Khamzin was brought to justice for allegedly allowing the NABU to conduct groundless searches of KAC judge Volodymyr Kuleberda. By such actions, members of the HCJ protect those involved in high-profile corruption investigations and delay the trial.

The knight is armed with a troop of professional judges and provided with employees and representatives of the patronage service and all the necessary armor. In the summer of 2020, the Verkhovna Rada provided the Anti-Corruption Court with premises, but the HACC decided to renovate the buildings and announced an architectural competition. The winner has already been chosen, and therefore, the process of strengthening the court has moved forward.

The HACC judges demonstrate high standards of professional behavior, they provide information about their income. The HACC as a court is quite active and constantly communicates about its activity. However, it doesn’t have a website on a separate platform that would contain all the information about the work. Moreover, judges do not have the right to fine for contempt of court those lawyers who disrupt hearings. However, the Parliament has already adopted a draft law that should address this problem in the first reading.

Readiness

The knight cannot fully protect his army from attacks and threats. According to the law, all HACC judges must have round-the-clock security, and everyone has an alarm button installed in the office. However, there are no guarantees of protection outside of work. During the work of the court, there were cases when judges needed protection.

Before the establishment of the HACC, cases of senior corrupt officials were very slowly considered by the general courts — sometimes for years. However, with the advent of the HACC, everything has changed. It not only accelerated this process, but was also able to build high-quality work from scratch. The knight formed a powerful military staff, selecting fighters from among judges, attorneys, and lawyers at transparent competitions.

For more than 2 years of work, the HACC as a court of first instance delivered verdicts concerning 5 MPs (two were acquitted), 3 heads/MPs of local councils, 14 judges (two were acquitted), 1 prosecutor, 4 heads of enterprises, 6 lawyers, 30 representatives of other professions (six were acquitted), and the first sentence was passed against the ex-minister — he was acquitted.

The knight has a minimum percentage of violations in the work. For the past year and a half, TI Ukraine’s lawyers have been monitoring the activity of the HACC, and during the monitoring they recorded only minor problems in the procedural aspects of the work of the HACC.

Staffing level

incriminating ones

acquittals

9

head

employees

1

255

of them have already entered into legal force

of it is channeled to the national income

sentences*

20

47

Qualitative

Quantitative

Uniqueness

deputy

1

HACC judges

27

vacancy

1

₴65 757 420

49 MPs from the pro-Russian OPFL party want to recognize the Anti-Corruption Court as unconstitutional, and have submitted a corresponding motion to the Constitutional Court for this purpose. In October 2020, the Grand Chamber of the Constitutional Court began considering the case. If the judges of the Constitutional Court agree with the authors’ arguments, this will have a negative impact on the entire anti-corruption system in Ukraine.

(05.09.2019-25.11.2021)

head of the Appeals Chamber

1

AP HACC judges

11

(in one of the criminal proceedings, a person was acquitted of part of the charge against them, and in the other part, they were found guilty)

of bail transferred to the HACC account (as of 30.11.2021)

₴1 090 492 221

verdicts reviewed by the AC of the HACC

26

criminal proceedings are under the HACC proceeding as a court of first instance (as of 26.11.2021)

189

criminal proceedings are under the review of the AC of the HACC

54

55

*information from the Unified State Register of Court Decisions as of 01.12.2021

Summary

In just over two years of work, the knight has performed well, as he performs the main task impartially: fairly considers cases based on the evidence obtained. The HACC does sentence, but this is not the only measure of its success because what certainly matters is fair justice which is impossible without acquittals.

n addition, the Anti-Corruption Court initiated the work of various practices, for example, the institution of agreements, civil forfeiture, and the bail mechanism. All of them have already proven themselves positively and are examples of bringing the institution closer to truly European standards.

For justice to be fair, all the national players must remember that the boundaries of the HACC knight’s lands are inviolable. Therefore, they are forbidden to interfere in the court’s affairs and try to influence judges. The Verkhovna Rada should also strengthen judicial guarantees in the law on the HACC so that the Anti-Corruption Court provides its army with security measures

To reduce pressure on judges, it is also necessary to change the mechanism for forming the High Council of Justice and turn it into an independent body. In addition, the knight should look for common ground with all participants in the trial for a constructive dialogue. However, this depends not only on his will — all parties should direct their efforts to build a qualitatively new justice system.