Volodymyr Bohatyr: NACB vs parliamentarians – a conflict between power branches? Can the executive body influence the parliament and why was there no international audit of the NACB?

The scandal involving the leaking of information in the National Anti-Corruption Bureau of Ukraine (NACB) called into question the effectiveness of reforms and international aid in this direction, and also made us think about the question of whether there is effective supervision over the activities of the NACB.

Status change

In 2020, when the Constitutional Court examined the constitutionality of the President's authority to appoint the director of the NACB (decision dated August 28, 2020 No. 9-r/2020), the judges paid a lot of attention to the principles of separation of powers and balance of power. Since they are the starting point for understanding the issue we have raised, we will note the key theses.

The Constitutional Court assumed that the separation of powers is the main means and an indispensable condition for preventing the concentration of power, and therefore, it is a tool against its abuse for the realization of the rights and freedoms of a person and a citizen. And any violation of the principle of the separation of powers, which leads to its concentration, including the combination of functions that do not belong to certain bodies of state power, violates the guarantees of the rights and freedoms of a person and a citizen.

According to the then-current version of the Law "On the National Anti-Corruption Bureau of Ukraine", the NACB had the status of a state law enforcement agency. However, as the Constitutional Court noted, the National Bureau, as a law enforcement body, is actually an executive power body, as it has all the necessary features (consists of central and territorial administrations, extends its powers to the entire territory of the state). According to the Constitution, the President is the head of state, and the highest body in the system of executive bodies is the Cabinet of Ministers. It is it who forms, reorganizes and liquidates central bodies of executive power, as well as appoints and dismisses managers. In view of the above, the Constitutional Court concluded that the President's appointment of the head of the body, whose powers functionally belong to the executive body, leads to an imbalance of the system of checks and balances, a violation of the functional distribution of powers and an actual change in the form of state government provided for by the Constitution of Ukraine.

The Verkhovna Rada was forced to agree with these conclusions and brought the status of the NACB into compliance with the requirements of the Constitution. Thus, by Law dated 19.10.2021 No. 1810-IX, the state law enforcement body turned into a central body of executive power with a special status, the head of which is appointed by the Cabinet of Ministers in accordance with a special procedure with the involvement of the tender commission of international and foreign organizations.

Parliamentary control

Actually, to ensure checks and balances, there is also a system of state control, which should ensure effective (in the broadest sense of the term) activity of the authority.

Since the Bureau did not lose its law enforcement function, control over its activities remained with the Verkhovna Rada Committee on Anti-Corruption Policy. This parliamentary control should be carried out in the manner determined by the Law "On Democratic Civilian Control over the Military Organization and Law Enforcement Bodies of the State."

The director of the NACB is tasked with informing the President, the Verkhovna Rada and the Cabinet of Ministers on the main issues of the Bureau and its divisions on the fulfillment of assigned tasks, and twice a year has to submit written reports to them with statistical data on its activities, information on interaction with other state bodies, foreign organizations, public and media, estimate data, etc.

The reports are submitted for conclusions to the Council of Public Control at the NACB and made public. And the Committee of the Verkhovna Rada must hold hearings open to the public at least once a year on the topic of the NACB's activities, performance of tasks assigned to it, compliance with legislation, rights and freedoms of individuals.

This chain includes both the reports of the Bureau itself and the conclusions of the Council of Public Control. From them we can, for example, learn that the main indicator of activity in the second half of 2023 is the subjectively calculated total amount of losses and damage caused by crimes brought by the law under the jurisdiction of the NACB (UAH 2.5 billion). In the opinion of the Council, set out in the conclusion, such a figure is an important indicator of the efficiency of the Bureau, as well as the rational distribution of attention in the investigation of corruption crimes. At most, this was reflected in the improvement of Ukraine's results in the rating - "Corruption Perception Index-2023", where the intensification of arrests and investigations in top corruption cases is separately highlighted. Among the more specific figures for understanding gains in activity are 68 verdicts of the High Anti-Corruption Court (HACC), which entered into force in 2023. Only four of them are exculpatory.

But the final subject of assessment - the Parliament - is actually absent. After all, the last public thematic hearings in the Committee were held in the spring of 2019. And they were not devoted to reporting, but to the results of the work of the NACB and the Specialized Anti-Corruption Prosecutor's Office (SACPO) for four years. When it comes to the quality of that event and the Committee's approach to work, it is enough to note that the invited NACB auditors did not appear at them (it is noteworthy that the last information about any other committee hearings on the official website dates back to 2017).

International performance audit at a dead end

But the Law dated 19.10.2021 No. 1810-IX provided for another subject of the NACB control. As in the selection of the director of the institution, these are foreign and international organizations. More precisely - the Commission for Conducting  Independent Assessment of the Effectiveness of the NACB’s Activity. According to the current wording of Part 7 of Art. 26 of the NACB Law, it consists of three persons appointed by the Cabinet of Ministers on the basis of proposals from international and foreign organizations. However, not all of them, but only those who during the last three years provided Ukraine with international technical assistance in the field of preventing and combating corruption.

The law describes in great detail the procedure for the formation of this entity, its rights and obligations, and even sets strict requirements for auditors: they can be persons who have experience working in pre-trial investigation bodies, prosecutor's offices, courts abroad or in international organizations no less than five years, have the necessary knowledge and skills to conduct an assessment (audit), and also have an impeccable business reputation.

An external independent assessment of the effectiveness of the NACB should be conducted annually. The conclusion based on its results should be published on the Government portal, included as an appendix to the NACB's written report, and heard by the Verkhovna Rada.

And, taking into account the "Final and Transitional Provisions" of Law No. 1810-IX, the first audit of the NACBU should have been conducted one year after the appointment of the director (the current director has been working since March 6, 2023).

As reported by the Secretariat of the Cabinet of Ministers, in February of this year the Government decided to start the formation of the Commission and instructed the Ministry of Foreign Affairs to prepare a list of international and foreign organizations whose members can form the composition of this Commission.

When the organizations became known (these are the European Union, the United States Agency for International Development (USAID), the International Development Law Organization (IDLO), the Organization for Security and Co-operation in Europe (OSCE), the European Bank for Reconstruction and Development (EBRD) and the International Narcotics and Law Enforcement Affairs (INL Section) of the U.S. Embassy in Ukraine), the Ministry of Foreign Affairs should have sent them letters inviting them to submit nominations for the Commission. However, to date, no response from foreign partners has been received. Therefore, the external independent evaluation got into a dead end. The question is whether the INL Section of the U.S. Embassy in Ukraine is an international foreign organization within the meaning of the relevant law, or is it a government structure of a foreign state?

Dust in the eyes or a substitute for an assessment

But for the general public, international evaluators were found! "A group of independent experts completed the Evaluation of the work of the National Bureau," the NACB reported at the end of December 2023.

A team of five experts consisting of the ex-head of the Special Investigation Service of Lithuania, two deputy inspector generals of the U.S. Department of Justice (current and former), a Japanese adviser to the Minister of Finance of Ukraine, as well as a Ukrainian expert on anti-corruption issues conducted a "technical assessment" at the request of the NACB itself” and submitted a report for the period from January 2021 to mid-summer 2023.

Although we do not fully understand the status of the experts, as well as the meaning and legal consequences of their work, we note that the subject of the group's study were three questions: how to strengthen the effectiveness of the NACB, how to ensure more efficient use of human and financial resources, as well as how to optimize investigative work through a better distribution of workload and prioritization of cases.

It is interesting that the experts did not so much look for answers within the NACB as tried to explain who, what and why prevents the Bureau from working effectively.

Thus, from the document prepared by independent experts, one can learn that the NACB, created in 2015, "has developed into a reputable anti-corruption institution with significant progress in the field of uncovering high-level corruption cases." The Bureau "has maintained an impeccable reputation, remaining untainted by any allegations of corruption, while staunchly defending its independence."

However, the effectiveness of the NACB is explained not by the quality of its own work, but by the institutional capacity of the SACPO and HACC. It is it which needs to be strengthened. There is also a serious problem of the length of court proceedings at the HACC, which also negatively affects the results of the NACB’s work.

At the same time, from the very moment of its creation, the NACB faced numerous attempts to interfere in its work, in particular, through manipulations with jurisdiction.

High work intensity, understaffing (the workload does not match the available human resources), bureaucracy, lack of resources, inefficient processes and stress due to war are cited as among the problems. They "test the resilience of the NACB personnel and can affect morale if measures are not taken."

Also, according to independent experts, the NACB clearly lacks powers. After all, the Bureau was unable to implement its right to autonomous wiretapping of mobile networks in practice. And it jeopardizes the investigation. In addition, the Bureau does not have effective access to certain types of information owned by private sector entities, including notaries, insurers, banks, and other important sources of information. The report revealed other limitations of the NACB's powers that should be eliminated.

It even happened to the Constitutional Court. After all, including because of its decision, in recent years the NACB "continued to face attacks on its independence." Because it was necessary to review the status of the NACB, which caused significant uncertainty. Experts for some reason did not accept the position of a single body of constitutional jurisdiction. They conclude that the NACB’s status as an executive body is a "working model in the short term". However, in their opinion, the constitutional status of the NACB needs to be reviewed in order to ensure the long-term stability of the body.

Such a report sufficiently characterizes the independence of the provided assessment. We can safely assume: if the document was not written in the NACB, but was prepared by the experts themselves, then they did it entirely on the basis of documents and information from the Bureau. And it is clear that such an audit substitute cannot be taken seriously.

Erosion of reforms

In terms of carrying out control in accordance with the law, today the NACB only prepares reports with beautiful and large pictures, which are approved by the departmental Council of Public Control. Actually, this is where all control ends. Or rather - it is practically absent.

As for the Parliament's participation in this process, according to the available information, out of four hundred actually active Members of Parliament of the IX convocation, at least 54 parliamentarians received suspicion from the NACB itself, another 19 - from the State Bureau of Investigation (SBI). That is, every fifth person is under criminal prosecution. And such numbers in themselves cause concern, as they look like an element of political pressure on parliamentarism in general.

Since committee hearings are not being organized today, and the prospects for the start of the work of the Commission for Conducting Independent Assessment of the Effectiveness of the NACB’s Activity are very vague, we can come to the paradoxical conclusion that both the Verkhovna Rada and international partners have moved away from working according to the model that they themselves created. It turns out that no one wants to take responsibility for the results of the reforms?

So we have a clear failure in the functioning of the system of checks and balances on the example of the National Anti-Corruption Bureau of Ukraine. And when there are no mechanisms to restrain the actions of a specific body of state power, human rights are inevitably at risk.

All this is a direct consequence of systemic errors in the approaches to the formation of the law enforcement system and, in particular, to the permanent reform of its anti-corruption direction. After all, if you look closely at the activities of all anti-corruption bodies, you can see that the NACB, SACPO, NACP, and HACC - all of them have long been subject to the erosion of pseudo-reforms. And in their current state, they no longer reflect the original intention of the authors. That is why it is advisable to pay attention to the experience of Eastern European countries, which recognize the fallacy of creating anti-corruption bodies and gradually eliminate them.

The latest news comes from Poland, whose government has announced plans to abolish the Central Anti-Corruption Bureau (similar to the NACB), which has existed for almost twenty years. Most likely, we will come to this as well. It is only a matter of time and readiness of the Security Service and politicians to pass through the integrity filter of judges and detectives of these bodies, their declarations and way of life.

The popular doctrine of the fruits of the poisonous tree indicates that if the source of power of the officials and the body (like the tree) is poisonous (unconstitutional or appointed in violation of the law), then the resulting fruits are also poisonous. This is the result of the creation and operation of the body without proper control.

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