This document not only significantly changes the procedural position of the Security Service of Ukraine (in the context of criminal proceedings), but also threatens the procedural independence of the Specialized Anti-Corruption Prosecutor’s Office and the capacity of the National Anti-Corruption Bureau of Ukraine.

What Is It Like Now?

Today there are clear rules of jurisdiction, that is, rules dictating which body will conduct the pre-trial investigation.

NABU’s jurisdiction is based on subjective (list of persons who are subjects of a criminal offense) and objective (list of corpus delicti) principles. Current rules of investigative jurisdictions establish a number of prohibitions to transfer cases from the investigative jurisdiction of the NABU to other pre-trial investigation agencies. Such imperatives are explained primarily by the need to ensure maximum operational independence and capacity of the NABU and the SAPO in terms of pre-trial investigation.

What Is Proposed? 

Draft law 4392 creates a number of significant risks for anti-corruption infrastructure bodies.

• Authorization of the Prosecutor General, in agreement with the head of the SAPO, to transfer NABU cases to the SBU

As noted above, in accordance with Art. 216 of the Criminal Procedural Code of Ukraine, it is prohibited to transfer cases under the investigative jurisdiction of the NABU to other pre-trial investigation agencies.

Currently, the draft law provides for the possibility to instruct the Prosecutor General, with the written consent of the head of the Specialized Anti-Corruption Prosecutor’s Office, to entrust the pre-trial investigation of a criminal offense under Article 36, part 5 of the CPC of Ukraine to the investigative bodies of the Security Service of Ukraine.

For example, if the criminal offense investigated by the NABU relates to the acts provided for in Art. 209 (legalization (laundering) of property obtained by criminal means), this will be the basis for the SBU to claim that such actions pose a threat to state security in the economic sphere. In this case, even the presence of a safeguard in the form of written consent of the head of the SAPO does not guarantee the procedural independence of NABU. 

• Violation of the direct prohibition in the CPC to “take away” cases from the NABU.

The current CPC stipulates that “it is prohibited to entrust the pre-trial investigation of a criminal offense under the jurisdiction of the National Anti-Corruption Bureau of Ukraine to another body of pre-trial investigation” (Art. 36, part 5 of the CPC of Ukraine). This mandatory rule is the most important safeguard for the NABU’s independence and guarantees that cases that fall under the jurisdiction of this body will not be transferred to other bodies of pre-trial investigation.

The draft law proposes that Article 36 of the CPC be amended with the phrase “except for cases stipulated by this Code.”

Given that there is currently an illegal practice of local courts using quasi-legal grounds to make illegal decisions to transfer cases from the NABU to other pre-trial investigation bodies, such changes effectively legitimize illegal influence on the NABU and increase the number of ways for individuals under investigation to significantly delay investigations. This is an encroachment on the procedural effectiveness of the NABU in that the body is deprived of the opportunity to effectively conduct a pre-trial investigation.

• Restrictions on the procedural independence and autonomy of SAPO prosecutors

Today, NABU detectives may also investigate criminal offenses under the jurisdiction of investigators of other bodies for the purpose of prevention, detection, termination and disclosure of criminal offenses referred to its jurisdiction at the decision of the NABU director and with agreement of a SAPO prosecutor (Art. 216, part 5, clause 3 of the CPC of Ukraine).

Draft law 4392 proposes the transfer of the approval procedure, regulated by Art. 216 of the CPC of Ukraine, to the level of SAPO head or their deputy. In this case, the concentration of powers to make such decisions is contrary to the status of the prosecutor as a procedurally independent entity, including the influence on the course of the pre-trial investigation by the SAPO leadership.

Also, such a shift in the decision-making point leads to excessive concentration of powers with the head of the SAPO. Their decisions may block the work of the entire institution.

• Restrictions on the procedural independence of the NABU

The NABU may take over cases upon the decision of the procedural manager if the relevant criminal offense has caused or could have caused serious consequences to the legally protected freedoms and interests of a natural or legal person, as well as state or public interests.

Art. 216, part 5, clause 3 of the CPC of Ukraine stipulates that the prosecutor who supervises the pre-trial investigations conducted by detectives of the National Anti-Corruption Bureau of Ukraine, may make the decision to refer criminal proceedings in criminal offenses under Art. 216, part 5, para. 1 of the CPC of Ukraine to the jurisdiction of NABU detectives, if the relevant criminal offense has caused or could have caused serious consequences to the legally protected freedoms and interests of a natural or legal person, as well as state or public interests. Serious consequences should be understood as causing damage to the vital interests of society and the state, including state sovereignty, territorial integrity of Ukraine, exercise of constitutional rights, freedoms and responsibilities of three or more persons.

The draft law proposes that if such referral to the NABU jurisdiction concerns cases investigated by the SBU, it should provide that such transfer takes place only upon a reasoned decision of the Prosecutor General (or acting Prosecutor General).

Recommendations:

First of all, the draft poses real threats to the independence and institutional capacity of the SAPO and the NABU. It is true both in terms of the agencies themselves and the independence of prosecutors as separate procedural units.

Second, this document strengthens the role of the SBU in conducting pre-trial investigation and actually “cements” this function. This approach goes beyond the role of the SBU, which has been reiterated by the public multiple times.

Third, reduction of procedural independence and providing the head of the SAPO with powers to approve the aforementioned procedural documents invalidates the procedural independence of prosecutors and does not comply with the status and functions of an administrative position in prosecution agencies. The Law of Ukraine “On Prosecution” clearly separates the notions of “prosecutorial powers” and “an administrative position,” noting that an administrative position does not exempt an individual from exercising prosecutorial powers. Thus, granting the above powers constitutes an encroachment on the procedural independence of a prosecutor.

Given the above, the draft law should not be supported as one providing for no positive changes.

The analysis has been prepared by TI Ukraine’s legal advisor Serhii Kurinnyi.

The post Increasing SBU Involvement in Anti-Corruption Investigations: Draft Law Analysis first appeared on Transparency International Ukraine.

Yesterday, Deputy Prosecutor General Oleksiy Symonenko transferred criminal proceedings on suspicion of Deputy Head of the Presidential Office Oleh Tatarov from NABU to the Security Service of Ukraine. Today, the HACC was supposed to select interim measures for him, and the investigation requested an arrest with bail set at UAH 10 million. To make it impossible to choose the interim measure, SAPO prosecutors were informed about the transfer of the case to the SBU at 9 a.m.

The NABU report makes it clear that the decision was made in secrecy, without consulting the NABU and the SAPO, effectively in the middle of the night: the note in the Unified Register of Pre-Trial Investigations was made at 11:42 p.m.

The law prohibits the transfer of cases under the investigative jurisdiction of the NABU to other pre-trial investigation agencies. Thus, the Prosecutor General’s Office made an unlawful decision, which grossly contradicts the requirements of the Criminal Procedural Code of Ukraine.

NABU detectives have evidence that the deputy head of the President’s Office, formerly a top official of the state-owned Ukrbud company, was involved in providing an illegal benefit for securing an untruthful written opinion of a forensic expert in the case of seizing UAH 81 million from the National Guard of Ukraine.

On December 1, on the eve of his notification of suspicion, the Prosecutor General, without notifying the procedural supervisors themselves, changed the group of prosecutors, which postponed the notification of suspicion to the official for 17 days.

“Instead of protecting the interests of the state, which suffered losses due to the actions of the suspect, the Prosecutor General’s Office actually stood up for his personal defense. Such actions completely discredit the public authority, whose activities should be based on the rule of law, legality and justice, impartiality and objectivity. The PGO neglected all of this to protect an official suspected of corruption,” says the NABU.

TI Ukraine considers such interference in the NABU’s work inadmissible, especially in such high-profile cases as investigations of high-ranking officials.

In this case, such interference can already be considered systematic. The change of the investigative jurisdiction by the Prosecutor General based on pseudo-legal reasons to benefit the suspect is truly outrageous.

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The post One month of Zelenskyy President. 10 Anti-Corruption Initiatives first appeared on Transparency International Ukraine.

Transparency International Ukraine urges the Verkhovna Rada to strip SBU of powers and obligations in the area of counteraction to economic and corruption-related offenses. It will allow the special service to allocate personnel and other resources for effective fight against threats to the national security and focus on counterintelligence and fighting terrorism. Such changes will also allow to avoid the situation when the same functions are assigned to different law enforcement agencies.

The activity of departments of the Security Service of Ukraine that specialize in fighting against economic crimes and corruption constantly brings about complaints from business. There are reasons to believe that individual officials, using the powers granted by the special service, impede the entrepreneurs’ work for personal gain. The lack of correspondence between their lifestyle (luxury cars and property they use) and the reasonable income of military servants and SBU employees (which are impossible to assess objectively because their declarations are classified) only reinforces such suspicions. Such facts have been documented and published by investigative journalists numerous times. This situation demoralizes those SBU officials who are involved in actual counteraction to the Russian aggression.

We urge MPs to support the amendments to draft law No. 8068 “On the National Security of Ukraine” which eliminate counteraction to economic and corruption-related crimes from the list of SBU’s tasks. We regret that the Committee on National Security and Defense ignored the respective proposals when the draft law was prepared for the second reading and count on MPs supporting these provisions in the voting process. We would like to emphasize that the suggested changes correspond to the standards of NATO member countries.

The post TI Ukraine: SBU Needs to be Stripped of Powers to Fight against Corruption and Economic Crimes first appeared on Transparency International Ukraine.

It is suggested to make amendments to the presidential draft law 8068 On the National Security of Ukraine in order to deprive the Security Service of Ukraine (SBU) of uncharacteristic functions of fighting against economic and corruption-related crimes. The changes were introduced by Ukrainian MP, head of the Verkhovna Rada Committee on Foreign Affairs Hanna Hopko. If they are passed, the SBU will lose the powers to engage in counterintelligence in the economic sector and the right to carry out investigative activity in economic and anti-corruption sectors.The changes were presented on April 26 at the joint briefing of MPs, business representatives and anti-corruption CSOs.

Earlier, SBU was already deprived of the right to investigate economic and corruption-related crimes. However, they retained the powers to “ensure economic security” and “fight against corruption.” These powers will allow the special services officials to carry out investigative and counterintelligence activity. In practice, it means the right of wiretapping, use of agent assets, searches with the use of force, delegating representatives to work in public bodies. SBU officers can identify crimes and, according to instructions, they have to notify the respective public body. However, SBU official often start “negotiating” with the potentially guilty individuals instead.

“Numerous journalist investigations show that the anti-corruption sector in the SBU is headed by people who have no explanation for their huge mansions and luxurious cars,” said Chair of the Board of the Anti-Corruption Action Center Vitalii Shabunin. “Instead of corruption counteraction, we observe illegal enrichment of SBU officials, extortion of bribes and pressure on business if it refuses to play by their rules or pay the ‘fee.’ Instead of fighting against separatism, SBU officials “allow” to use fake documents for $3000 to live on the Ukrainian territory. And it happens in a time of war in the country.”

According to the suggested changes, grand corruption belongs to the remit of the National Anti-Corruption Bureau exclusively, which has the investigative rights. Investigation of petty corruption and economic crimes is within the scope of powers of the National Police of Ukraine. State Investigation Bureau and, in future, State Service of Financial Investigations will soon start investigating certain economic crimes. Leaving these powers with the SBU would mean doubling these functions and creating conditions for undue pressure on business. SBU needs to retain exclusively the functions characteristic of a special service – protection of the sovereignty and counter-terrorism.

“Now Ukraine has a historic chance to take the possibility of undue pressure on business away from SBU – the fact that is one of the significant obstacles of engaging investments to Ukraine,” said MP Hanna Hopko. “SBU needs to fulfill its functions – fight against terrorism and diversions. SBU reform required from Ukraine by our western partners and the NATO is long overdue.”

International experts and business have accused SBU of pressuring companies multiple times, claiming it was one of the key obstacles on the way of getting investments to Ukraine.

“The pressure of law enforcement agencies on business is a red flag for any investor into Ukraine and sends a clear signal of lack of any rule of law in the country,” explained president of EBA Tomas Fiala. “I speak with investors and business owners a lot. Their stance is clear: as long as business in Ukraine remains defenseless against illegal actions of law enforcement agencies, the investments will be much lower than those into our western neighbors, therefore the economic gap will be growing.”

Yaroslav Yurchyshyn, Executive Director of Transparency International Ukraine, pointed out that this situation with a special service is dragging Ukraine down in the international corruption ranking. “We have analyzed why Ukraine ranks so low in the “Corruption Perception Index 2017”. As a reminder, based on last year’s score, our country ranks 130th, a place uncharacteristically low for a European country. We have come to the conclusion that one of the reasons is interference of special services with business. Under the pretext of fighting against economic crime, SBU effectively blocks the work of certain economic entities, or sometimes even entire industries. The cancerous tumors of corruption which are the root of these uncharacteristic powers of a special service cover the entire law enforcement system. Now, we have a window of opportunities to reform the SBU. The next step has to be the formation of the Service of Financial Investigations,” added the head of the Ukrainian chapter of the global anti-corruption network. 

According to the official report of the Security Service of Ukraine concerning the number of cases referred to court, 1 in 4 criminal proceedings investigated by the SBU is beyond the scope of their jurisdiction. Out of 889 cases referred to court almost 200 should have been investigated by a different agency. When MP Serhii Leshchenko made a request for statistical information on the work in the area of economic security, SBU responded that “statistical data of counter-intelligence activity of SBU agencies and departments constitute state secret and must be protected.”

It is noteworthy that sometimes, SBU paralyzes the activity not only of individual companies, but of entire industries. A remarkable example is the recent scandal around the liquefied gas market, when the SBU blocked the work of several suppliers, establishing the monopoly of one single company. 

Economic counter-intelligence of the SBU has once interfered with the procurement of medicine for lethally dead Ukrainians. The Security Service of Ukraine started writing letters to the government about the need to “review the procurement mechanism” and summon MoH working group members for interrogations. 

As a reminder, at the beginning of April, the Parliament passed draft law 8068 “On the National Security of Ukraine” in the first reading and will soon vote for it in the second reading. 

The post Transparency International Ukraine Supports MPs’ Initiative to Prevent SBU from Pressuring Business first appeared on Transparency International Ukraine.