The End of the Anti-Corruption Tale

In late 2019, within four days from December 13 to December 16, Ukrainian courts put a legal end to the “fight against corruption,” which U.S. Embassy had launched in Ukraine 5 years ago. First, on December 13, 2019 the Rivne Oblast Court of Appeals finally found Artem Sytnyk, the Head of the National Anti-Corruption Bureau of Ukraine, a corrupt official, and then on December 16, 2019 the Constitutional Court of Ukraine confirmed that Sytnyk holds the position of the Director of the NABU illegally.

It was evident even at the time when the National Anti-Corruption Bureau of Ukraine was being established in 2015 that the new agency would in no way affect the level of corruption in the country. And not only because “civil activists,” involved in selecting the Director of the NABU, settled on Artem Sytnyk, a former head of the investigations division of the Prosecutor of Kyiv Region’s Office with a corruption trail dating back to 2009. Sytnyk’s moral and professional qualities were not the main factor to cause total impotence of a new law enforcement agency. After all, the Director of the NABU holds only an administrative position, he’s not involved in procedural work, and should have no input into investigating criminal proceedings under NABU’s jurisdiction. The very idea of mitigating corruption in a country by establishing state agencies and creating new positions for bureaucrats is ill-fated.

At the time of establishing the NABU, four agencies devoted to fighting corruption had been already in place in Ukraine—prosecutor’s office, police, tax police, and the Security Service of Ukraine. Obviously, establishing yet another law enforcement agency only brought about additional strain on the state budget.

Endemic corruption in Ukraine is caused by feudal organization of the state, which leads to the stratified society and the government that is not divided into separate independent branches. Ukrainian society is split into horizontal layers that differ not only in access to material wealth but first and foremost in extent of the rights and freedoms. Lower strata are powerless, there is no justice in the modern sense of the word; instead, “aristocrats” (top state officials, members of parliament, oligarchs, etc.) are not burdened by any social norms and consider the state its private property, mercilessly pillaging what’s left of its former wealth through various corruption schemes.

To eradicate systemic corruption, first it is necessary to carry out a constitutional reform by eliminating the unnecessary post of the president, thereby abolishing monarchy in Ukraine and turning the ruling class into ordinary public servants; dividing the government into separate independent branches; and establishing the system of oversight over the public law bodies’ compliance with the law. Until recently, power to oversee the compliance with the law in the country of any public law body—law enforcement officers and public servants, top officials at ministries and other agencies, officials of the supervisory bodies, etc.—was delegated to the Prosecutor’s Office of Ukraine, a nominally independent agency (at least a separate Chapter of the Constitution of Ukraine was devoted to it) that didn’t belong to any government branch. Of course, in a feudal state, the Prosecutor General’s Office of Ukraine enjoyed a status of a division in the Administration of the President of Ukraine and acted only within the lines permitted. But the very existence of a supervisory body posed a death threat to corrupt public servants, because, should the Prosecutor General get out of the monarch’s hand, he could end all the corruption schemes within the course of several months.

Instead, on October 14, 2014 an event took place under the glass dome of Verkhovna Rada that significantly determined the follow-up socio-political processes in Ukraine. That day, the Ukrainian parliament, in response to the proposal by President Poroshenko and professional “civil activists” funded by the U.S. Embassy (primarily, top members of the Democratic Alliance party), passed a new Law “On the Prosecutor’s Office” written in the Administration of the former president Viktor Yanukovych and sent to Verkhovna Rada in November of 2013. This bill abolished prosecutorial oversight of the compliance with the law in Ukraine, along with the law enforcement role of the prosecutors. Also, prosecutors were stripped of a right to sue public servants, state bodies, or local governments in order to protect public interest—for instance, in the interest of a local community or an undefined group of persons. After that, mitigating rampant corruption in Ukraine became impossible, especially given that on June 2, 2016 abolition of the prosecutorial oversight was enshrined in the Constitution of Ukraine—with full support of so called “eurooptimists.” Moreover, amendments to the Constitution of Ukraine actually abolished the Prosecutor’s Office of Ukraine as an independent supervisory authority. Instead, they established simply a Prosecutor’s Office (without “Ukraine”) within the judicial branch, which currently has power only to support public prosecution in court, supervise pre-trial investigation, and oversee undercover investigatory and search operations (by the way, representing the state in court is allowed only in exceptional cases, and representing public interest in court is not allowed at all). In this way, corrupt top officials, assisted by loud “civil activists,” protected themselves from persecution and their property from confiscation in case government changes.

To make abolition of oversight over compliance with the law of public servants and other public law bodies less conspicuous, on October 14, 2014 Verkhovna Rada of Ukraine, along with the new Law “On the Prosecutor’s Office,” passed a new Law “On the National Anti-Corruption Bureau of Ukraine,” thus establishing yet another law enforcement agency and giving it power previously enjoyed by the Prosecutor General’s Office and the Security Service of Ukraine to carry out pre-trial investigation in criminal proceedings regarding corruption offences committed by top officials.

An idea to establish the NABU originated in spring of 2014 during negotiations between the government and the International Monetary Fund’s delegation on giving another loan in December of 2014. Initially the intention was to establish a new division within the Prosecutor General’s Office of Ukraine to criminally persecute top officials.

However, officials in the Administration of the President, which was then headed by Serhiy Pashynskyi who was simultaneously illegally holding a position of a member of Ukrainian parliament, recalled that on February 26, 2014, after Yanukovych had fled, the best representatives of the people’s regime promised from the stage of Maidan to establish an Anti-Corruption Bureau and appoint Pashynskyi’s girlfriend Tetiana Chornovol its head. Thus, to fulfill the will of Maidan and to restore historical justice (at that time Tetiana Mykolayivna had been holding a position of the State Commissioner for Anti-Corruption Policy, and this in no way corresponded neither to her mental state nor to her service to the people of Ukraine), it was decided to establish a separate law enforcement agency specifically for Chornovol, so that its name would include anti-corruption activities.

However, tranche never came in December of 2014, and establishing the NABU became pointless. But since the process had already started, it slowly went on. Upon election of Petro Poorshenko as president, Pashynskyi lost his power and could not lobby appointing Ms. Chornovol a Director of the NABU. Instead, the banner of fight against corruption that dropped out of Tetiana Mykolayivna’s hands was picked up by the professional “civil activists” who were making money off lobbying interests of pharmaceutical companies and promoting certain medications to the Ukrainian market. Among them were Vitaliy Shabunin, a private entrepreneur (specializing in selling goods from tents), Dmytro Sherembei, a guy sentenced three times for apartment burglaries, Oleksandra Ustinova who had never worked before, and other selfless currency enthusiasts who managed to receive grants from the International Renaissance Foundation and the U.S. Embassy in Ukraine for lobbying the draft of the Law “On the National Anti-Corruption Bureau of Ukraine.” The bill itself was being drafted by such prominent lawyers of our time as Viktor Chumak, a former legal advisor of the State Border Guard Service of Ukraine, Ruslan Riaboshapka, an employee of a pseudo-NGO named Transparency International Ukraine (by the way, this so called NGO is in no way related to the Transparency International organization and was created by renaming something like a gardening company or a kennel club in Kropyvnytskyi), and Oleksandr Danylyuk, a Deputy Head of the Administration of the President, under supervision of Yuriy Kosiuk, a Hero of Ukraine and an owner of the Mironivsky Hliboproduct agricultural holding and Nasha Riaba trademark.

It is not surprising that the NABU turned out to be a fifth wheel to the government—Law “On the National Anti-Corruption Bureau of Ukraine” did not attribute it to any government branch. Well, this would not have been a problem (prosecutor’s office also didn’t belong to any branch before September 30, 2016) should the NABU’s powers, procedure for its establishing, and overseeing its activities be laid out in a separate chapter of the Constitution of Ukraine. The procedure for appointing the Director of the NABU—by a president’s executive order following reviewing the applications selected in an open competition by professional “civil activists”—is totally unconstitutional as well. An exhaustive list of president’s powers is given in the Constitution of Ukraine, and of course nothing remotely similar is to be found there. The very idea of establishing yet another law enforcement agency for investigating crimes of a certain kind is equally absurd. This is not to mention such beauties in the Law “On the National Anti-Corruption Bureau of Ukraine” as empowering the NABU to sue in the state’s interest or selecting undercover agents in open competitions.

Nevertheless, professional “civil activists” were not bothered much by the unconstitutional and obviously absurd nature of the draft bill. Since, according to the terms of the grant, a hefty bonus had been promised in case of passing the Law of Ukraine “On the National Anti-Corruption Bureau of Ukraine,” on the voting day, professional “civil activists” funded by the U.S. Embassy and led by Shabunin, came to Verkhovna Rada with a bucketful of tomatoes promising to throw them at the members of parliament to demonstrate rudimentary common sense and not support ignorant writings by Riaboshapka, Chumak, and Danylyuk.

And here a flashy performance began: first, selection of a team of “civil activists” proclaimed to be venerable Ukrainians bestowed with the right to select two candidates for the prospective post of the Director of the NABU and then to propose them to the president; second, selection of these two candidates. Moreover, results of the competition were known long beforehand—the Administration of the President sent to Georgia for David Sakvarelidze, a member of parliament there known for his intelligence, to appoint him a Director of the NABU. Andriy Taranov, the then Deputy Head of the Administration of the President who was overseeing law enforcement agencies, surmised that foreigner Sakvarelidze, possessing zero knowledge of Ukrainian law, having zero connections with local elites and zero income, would become a puppet in president’s hands, totally dependent on monarch’s pittance in an envelope.

And things would proceed this way if it were not for Petro Oleksiyovych’s naivete. Not being able to keep his mouth shout, in December of 2014, right in the middle of the competition for the post of the Director of the NABU, the president publicly blurted out that the name of the forthcoming manager of this agency was already known, and the public would be pleasantly surprised with it. A scandal broke out immediately, as other contenders for the post of the Director of the NABU realized that they had been primitively used to make the whole thing look like a competition. Especially considering that Sakvarelidze did not meet one of the qualifying requirements from the Law “On the National Anti-Corruption Bureau of Ukraine,” namely, he did not speak Ukrainian. But in the end, everything ended well for Poroshenko—instead of Sakvarelidze, members of the competition commission chose Artem Sytnyk, a former head of the investigations division of the Prosecutor of Kyiv Region’s Office, and Mykola Siryi, a lawyer. It is from these two that Poroshenko selected Sytnyk, having appointed him, against the Constitution of Ukraine, a Director of the NABU by executive order 218/2015 of April 16, 2015.

Poroshenko wasn’t bothered by the blatantly unconstitutional nature of appointing the Director of the NABU, even though lack of a legitimate head of this law enforcement agency nullifies all his orders, in particular the ones about hiring NABU detectives. Instead, Zelenskyy decided to fix the situation and give an appearance of legitimacy, albeit retroactively, to Sytnyk and a Director of the State Bureau of Investigations that had also been appointed by Poroshenko with flagrant violation of constitutional foundations. To that end, on August 29, 2019 Zelenskyy sent to Verkhovna Rada of Ukraine a draft amendment to Article 106 of the Constitution of Ukraine, written by the same Riaboshapka. This amendment would allow the president to appoint and fire directors of the National Anti-Corruption Bureau of Ukraine and the State Bureau of Investigations.

On September 3, 2019 Verkhovna Rada supported the president’s proposal. But since this was not a regular bill but a constitutional amendment, a positive ruling was required from the Constitutional Court of Ukraine. On December 16, 2019 the CCU concluded that empowering the President of Ukraine to appoint directors of the NABU and the SBI is inconsistent with Part 1 of Article 157 of the Constitution of Ukraine.

And before that, on June 5, 2019, in its Decision 4-р(ІІ)/2019, the CCU found another intellectual product of Riaboshapka and Chumak inconsistent with the constitution—Paragraph 13 of Part 1 of Article 17 of the Law of Ukraine “On the National Anti-Corruption Bureau of Ukraine,” according to which NABU was empowered to sue in civil or commercial proceedings to deem civil law contracts null and void.

If Volodymyr Zelenskyy, in his failed attempt to amend the Constitution of Ukraine, hadn’t drawn public attention to the unconstitutional procedure of appointing a Director of the NABU, only constitutional lawyers and a small cohort of columnists writing about law would have known that Artem Sytnyk is an illegitimate head of the National Anti-Corruption Bureau of Ukraine. Instead, now this problem gained considerable attention, which begs the question about how to eliminate the legal conflict, confirmed by the Constitutional Court, between Article 106 of the Constitution of Ukraine and Part 9 of Article 7 of the Law of Ukraine “On the National Anti-Corruption Bureau of Ukraine,” which, against the Constitution, empowers the president to appoint a Director of the NABU.

Technically speaking, this provision of the Law of Ukraine “On the National Anti-Corruption Bureau of Ukraine” will remain in force until the CCU finds it inconsistent with the Constitution of Ukraine in a separate decision. Moreover, the unconstitutional provision will cease to have effect only on the day of publication of the corresponding decision of the CCU, not on the day when the decision will be made. Therefore, each additional day of Sytnyk’s tenure as a Director of NABU only bolsters legal chaos and public desecration of state institutions.

Besides, after more than four years that the National Anti-Corruption Bureau of Ukraine has been active (first detectives were sworn into office on September 16, 2015), the only notable effect from this agency is acute increase of the level of corruption in the country because of utter NABU’s impotence, designating certain kinds of crimes as belonging to exclusive jurisdiction of the National Anti-Corruption Bureau of Ukraine, and corrupt tendencies of its management.

The way out is to immediately abolish the National Anti-Corruption Bureau of Ukraine and to transfer criminal proceedings under its jurisdiction to the State Bureau of Investigations. This would not only get rid of Sytnyk, who had been officially found a corrupt person, in the easiest way possible, but primarily align the law enforcement system of Ukraine with the principle of the separation of powers into three independent branches and eliminate basic deficiencies introduced in 2014 to the Law of Ukraine “On the National Anti-Corruption Bureau of Ukraine” by his ignorant authors such as Riaboshapka, Chumak, and Danylyuk. As for the fight against corruption, no new law enforcement agencies are necessary. What needs to be done is to restore the prosecutorial oversight over the compliance with the law and its adequate enforcement by all state bodies; to free the prosecutor’s office from riaboshapkas and chumaks; and finally to separate the prosecutor’s office from politics and foreign embassies.