Unravelling Corruption And Anti-Corruption In Ukraine

22 November 2017 18:54

Last week, Anna Solomatina, the former head of the Ukrainian National Agency for Preventing Corruption’s financial control department, came forward with corruption allegations against the NAPC leadership. Then she resigned.

Since that moment, the situation has developed rapidly. As more details came to light, Ukrainians were also shocked at the news of two criminal cases — one against the Artem Sytnyk, the head of Ukraine’s National Anti-Corruption Bureau (NABU); the other against Ukrainian Prosecutor General Yuriy Lutsenko. News of the charges emerged just minutes apart on November 17.

While staying abreast of this fast-moving story is no small feat, one thing is clear to everyone. There are serious tensions between Ukraine’s three anti-corruption bodies — NABU, NAPC, and the Specialized Anti-Corruption Prosecutor’s Office (SAPO).

However, according to Maksym Kostetskyi, a Legal Advisor to Transparency International Ukraine, not all these agencies are equal. Unlike NAPC, NABU has done a significant amount of critical work.

“For sure, NABU is doing their job better than the NAPC does,” he said. “NABU has been investigating hundreds of criminal cases since it was launched in 2014, and it has proven that the work they are doing in 2016 and the beginning of 2017 is actually vital, because they are investigating cases against high-ranking officials, they are doing it against the People’s Deputies of Ukraine, the members of the Cabinet of Ministers of Ukraine.”

The information provided by Solomatina is “extremely crucial,” Kostetskyi says, and NAPC director Natalia Korchak needs to be removed from office during the investigation to “make sure it is objective and impartial.”

Photo credit: HROMADSKE

Kostetskyi also believes that the claim that the Presidential Administration — and particularly lawyer Oleksiy Horashchenkov — has allegedly been giving direct orders to the NAPC and controlling its work is unimaginable.

“The Presidential Administration does not have legal instruments to pressure either the NAPC or the parliament of Ukraine,” he said. “The informal talks they are having with the high-ranking officials should be stopped because it is not how politics should be done.”

Hromadske spoke with Maksym Kostetskyi, Legal Advisor to Transparency International Ukraine, to break down the latest events in Ukraine’s complicated worlds of corruption and anti-corruption.

How would you describe the case? What is important about it?

First of all, it is important to remember that the National Agency for Prevention of Corruption was created in order to actually prevent corruption and, as you already mentioned, in 2015, the launch of this institution was one of the preconditions for the visa-free regime of Ukraine. Unfortunately, since its launch in 2015, the Agency did not fulfill its obligations as it was supposed to be and, unfortunately, the people who were in charge of doing the functions that are prescribed to the National Agency for Prevention of Corruption did not fulfill their duties. Well, first of all, it is important to understand that the person, who is now becoming a whistleblower, comes from an agency that is supposed to protect whistleblowers, which is means that it is kind of an irony here and we need to understand that the person [who] is Anna Solomatina, was the first whistleblower from the anti-corruption agency since 2014 and the information she provided is extremely crucial. In order to see whether or not there was criminal wrongdoing in the acts that were done by the head of the NAPC Miss Natalia Korchak, the investigation has to be held now and the National Anti-corruption Bureau of Ukraine now has to investigate what has been done.

Photo credit: HROMADSKE

Why is there so much trust in this whistleblower and so much criticism of the National Agency for Preventing Corruption? Give us a clear difference between them and your view on the fight between the two agencies, because, from the outside, it just looks bad. It looks bad from any kind of perspective. What is your take on this?

There is a very strict difference between the National Anti-corruption Bureau of Ukraine and the National Agency for Prevention of Corruption. NABU has been investigating hundreds of criminal cases since it was launched in 2014 and it has proven that the work they are doing in 2016 and the beginning of 2017 is actually vital because they are investigating cases against high-ranking officials, they are doing it against the People’s Deputies of Ukraine, the members of the Cabinet of Ministers of Ukraine. However, the National Agency for Prevention of Corruption, which was supposed to verify hundreds of thousands of electronic declarations made by those officials did not fulfill their duties. And unfortunately, if I am not mistaken, in 2016, the verified only 81 declarations, which means that it’s not even 1% of the whole work they are supposed to be doing. Moreover, the head of the National Agency for Prevention of Corruption Miss Natalia Korchak has been subject to political influence from the Administration of the President of Ukraine unfortunately and, as we see from the information that we got from the whistleblower, there has been [attempts] and different private meetings, where they invited members from the different departments of the National Agency to the Administration of the President, in order to make them do something, or, in order to stop them from doing something. That is very, very bad information for the Agency itself and we see that, of course, only [the] court can verify whether this information is true and whether or not there was criminal wrongdoing here. But however, we see that it is object information that the National Agency did not do their job properly and if there are crimes that have been done by the head of the National Agency, then, of course, they should be investigated.

There is also sometimes criticism of our National Anti-corruption Bureau, which is an executive body, which is investigating the cases. These could also be politically motivated. There are particular cases which put us in a difficult position because there are anti-corruption activists, some of them are MPs, who are supporting the work of NABU. But this makes the whole process even more political. So, as a representative of the international organizations, who are also sometimes accused of being political by the people who speak for the government, what is the way out of this situation? In the end, we see the agencies, who should be doing a good job but it looks like they are just fighting among themselves?

First of all, everyone can see what job they are doing because you can just go to the website and you can see how many criminal proceedings are being investigated by the National Anti-corruption Bureau of Ukraine. The problem is with the courts because, unfortunately, the majority of the cases submitted by NABU, they just stay delayed in the courts for a couple of months, and some of them, unfortunately, even for a year, which means that the judicial reform is extremely crucial for NABU to be 100% effective. I cannot be 100% sure that there is no political influence on NABU but, for sure, NABU is doing their job better than the NAPC does. And as to what kind of decision we could have in this conflict, unfortunately, I think it is important to first of all, as Transparency International, we mentioned that it is important during the investigation of this process, during the investigation of the case that was submitted by the whistleblower, Miss Natalia Korchak, the head of the NAPC, has to be removed from office at least for the time of this investigation, in order to make sure that it is objective and impartial. And, in the long-run, we need to understand and to make legislative changes to the law on prevention of corruption in order to make sure that the Agency does fulfill their obligations.

On whom does it depend? You are addressing something as an organisation.

On the lawmakers, of course, because they have to make legislative changes. And as to removing Miss Natalia Korchak from office during the time of the investigation, it is the duty of the Cabinet of Ministers. They can do it in order to make sure the investigation 100% objective and impartial.

What could be, or should be, the role of the Presidential Administration in this? As the whole case is around political control.

Photo credit: HROMADSKE

The Presidential Administration does not have legal instruments to pressure either the NAPC or the parliament of Ukraine. As we see, they do use informal ways to influence top high-ranking officials. We most certainly want to emphasize that the Administration of the President should stop making such private meetings with the high-ranking officials in order to influence their decisions. It is important that they are doing stuff that they are obliged [to] by law, that they are not doing anything that is forbidden by law. Even if the Administration of the President does fulfill their job properly, their talks and the informal talks they are having with the high-ranking officials should be stopped because it is not how the politics should be done.

This week we also had the news about the particular case when, on Friday, the National Anti-corruption Bureau opened a criminal case against Ukrainian Prosecutor General Yuriy Lutsenko for illegally enriching himself. He used to be the head of the president’s faction in the parliament and he is one of the closest people to Ukrainian President Petro Poroshenko. I know it’s not the first case, it’s something they had to do. Could you also give us some context for this case?

According to Ukrainian legislation, first of all, Article 214 of the Criminal Procedural Code, if there is a motion submitted to any agency, for example, like the Prosecutor’s Office or the National Anti-corruption Bureau, or the Ministry of Internal Affairs, if any person submits a motion that there is a crime done by another person, they have to open a criminal case, they have to start a criminal investigation, it’s their obligation under law. And as far as I understand, in this case, NABU has received this information from Mr. Rinat Kuzmin about half a year ago, and they did not start a criminal investigation, so he went to court and there was a court decision, which obliged the National Anti-corruption Bureau to start this investigation. So it’s strictly due to the law and I do not think there are any political matters in this issue.