On 29 November the IACAB has adopted its first Opinion on how to ensure competent, independent and effective delivery of justice on cases related to high-level corruption in Ukraine ‘Effectiveness through independence’. In this Opinion the Board identifies key areas of concern and gives recommendations on how to mitigate risks related to the sustainability of efforts directed at tackling impunity for high-level corruption practices.
The first IACAB Opinion was adopted during the Board’s meeting in Kyiv between the 27 and the 29 of November. During this visit the members of the Board held a number of internal and external meetings with, inter alia, Head and members of the Committee of the Verkhovna Rada on Corruption Prevention and Counteraction, and finalized their findings and recommendations. The latter were also presented during the press conference.
The Opinion contains 12 recommendations. International experts call for greater independence of the National Anti-Corruption Bureau (NABU): to ensure the exclusive jurisdiction of NABU in anti-corruption investigations against high officials in order to avoid that cases bypass NABU; to cancel the possibility of dismissal of the head of NABU on the basis of negative audit result. It is advisable to adopt legislation that would give NABU the right to independently obtain information from communication channels without resorting to law enforcement or intelligence agencies, and to limit the possibility of public disclosure of information at the pre-trial investigation stage, so as not to compromise the investigation.
Experts also call for the abolition of amendments to the Criminal Procedure Code of Ukraine that prevent NABU and the Specialized Anti-Corruption Prosecutor’s Office to effectively investigate cases of top-level corruption and ask for adequate operational and administrative independence of SAPO from the PGO. Also, the IACAB call upon the Ukrainian authorities to consider reviewing the appointment procedure and the role of the Attorney General in order to ensure an independent justice system.
IACAB representatives expressed concern about the efficiency of the current system. ‘NABU handed over to the SAPO, and SAPO to courts in total 93 cases. Consideration of 3/4 of them was suspended without explanation. In 24 cases there is a decision, but only 17 decisions are final; of these 17, 15 are based on the consent of the parties; that is, only two cases have court decisions,’ said Carlos Castresana. He also expressed concern that the NACP has verified only about a hundred electronic asset declarations.
Experts call for the launch of a specialized anti-corruption court as soon as possible, taking into account the recommendations of the Venice Commission of 9 October, 2017; provide the exclusive competence of such a court and a special selection procedure with high requirements for candidates for positions of judges, proper payment and protection for their work. ‘The creation of a specialized anti-corruption court should be an urgent priority. It is critically important that it begins to work properly and provides a deterrent effect that we all expect,’ said Carlos Castresana.
Particular emphasis is placed on the need to create a mechanism that will balance the protection of anti-corruption bodies from unwarranted allegations potentially related to corruption and the accountability of these bodies in the case of real misconduct.
Representatives of IACAB expressed grave concern about recent events around NABU. ‘We fear that this could have serious consequences for the operational capability of NABU, and that this could mark the beginning of even more severe attacks on the Bureau, whose work began to bring the first results,’ said Drago Kos. ‘This can destroy all our efforts of the last years in the fight against corruption. By the way, Ukraine is not in a unique situation – this happened in many countries, when the work of anti-corruption bodies began to give the first real results,’ said Carlos Castresana.
