Bohdan Ustymenko: Scandal In the NABU — May Gizo Uglava Dismissal Be Enough?

Since the NABU establishment in 2015, we, the Ukrainians, have been told that highly professional, honest and decent detectives were working in this agency, and the Bureau has always been positioned as a model law enforcement agency. It was imposed on society as an axiom. Then the system has "suddenly" broken down. It broke in a way that everything that had been accumulated began to get out to the surface. A scandalous event with the information leak by Gizo Uglava just took place and the society has learned about the real, extremely unpleasant state of affairs. This time it happened publicly and officially.

Do you remember how the NABU Director and the Special Anti-Corruption Prosecutor’s Office of Ukraine (SAP) Head had an internal conflict at the time, which they tried to hide from journalists and society as much as possible? In short, the cause of that conflict included both work procedural moments and a certain kind of difference in human values. During one of the informal (off-records) communications with media representatives at the NABU, the Head of the Bureau disclosed certain data of the pre-trial investigation and definitely made it clear that the Head of the SAP was, to put it mildly, "a bad person".

The culmination was the investigation of the General Prosecutor’s Office of Ukraine during Lutsenko's “era” against the NABU Director on the fact of the pre-trial investigation data leakage. De jure it ended in nothing, and de facto spilled into a well-known " Kholodnytskyi’s fish", when a wiretap installed by the NABU was detected in the fish tank in the SAP Head’s office.

However, as it often happens in Ukraine, the case has ingloriously been gone away and the "fish" have never "spoken". According to one version, the results of the wiretapping in the Anti-Corruption Prosecutor's Office Head’s office were meant to be used to favour Gizo Uglava appointment as the SAP Head. In the end, the case was closed, and the SAP Head was reprimanded and allowed to resign quietly. Nevertheless, this was the first serious case on the pre-trial investigation data leakage.

"Never been and here again"

On May 24, the websites of the NABU and SAP simultaneously published a rather dry information that "the NABU and SAP have reached a common vision regarding the organization of a further impartial investigation of the facts of the pre-trial investigation data disclosure". According to the media, it was about the alleged data leakage by no one else, but the NABU First Deputy Director Gizo Uglava. But after the first publication - there was silence in the Bureau. Everyone seemed to be hiding. It's a wonder why the NABU didn't publish its "branded" video with clear speaking charts concerning investigation the case of Gizo Uglava and what he had committed. The public would be interested to watch the detectives' comments and bright pictures. Instead, we see some double standards. The searches and any data of the pre-trial investigation on this case are already being hidden from the public as much as possible. It seems that this high-profile case is simply tried to be "covered up" by hook or by crook.

However, according to the legislation, the prosecutors in any proceedings supervise pre-trial investigations conducted by the NABU detectives. Moreover, from a procedural point of view, prosecutors are the direct supervisors of detectives. We can interpret the phrase that the NABU and the SAP "reached a common vision" in the mentioned context as follows: there are extra-procedural communications between the NABU and SAP that have nothing to do with the norms of criminal procedural legislation.

At the same time, taking into account the mandatory provisions set forth in Article 216 of the Criminal Procedural Code, the NABU detectives do not have the right to investigate criminal offenses committed by the NABU director and his deputies. This is absolutely logical, since actually subordinate employees cannot impartially investigate crimes committed by their superiors. In the specific case, the investigation shall be carried out by investigators of a completely different law enforcement agency, namely the State Bureau of Investigation.

The NABU "Godfather"

It is important to understand that Gizo Uglava has been working at the NABU since its creation, that is, for almost ten years, and he actually headed it in 2022-2023. Thus, the "backbone" of the NABU team was formed under Gizo Uglava who can be safely called the "NABU Godfather".

As the First Deputy Head of the Bureau, Uglava has personally selected many detectives. Within nine years at this position, Gizo Uglava surrounded himself with a large group of detectives who perceive him as a datum. Given that the Specialized Anti-Corruption Prosecutor's Office Head is former detective Oleksandr Klymenko, who worked at the NABU from the beginning of 2016 until 2022, all the puzzles come together and the circle closes.

I would like to repeat that we see from the text of the joint message of the NABU and SAP that these bodies "reached a common vision regarding the organization of a further impartial investigation". I'm afraid to make a mistake, but under such circumstances, it is very likely that after conducting this "comprehensive and impartial" investigation by the NABU detectives, the case regarding the temporarily suspended Gizo Uglava will be simply "closed".

Systemic problems in the activity of the NABU

On the NABU website, one can find and read the Bureau Activities Assessment Report for 2021-2023, which was carried out at the initiative of the US Embassy in Ukraine and the EU Anti-Corruption Initiative. Even there it is indicated that "favouritism" is flourishing in the NABU.

It is easy to guess that it was the long-lasting First Deputy Head who had made efforts to implement the principle of favouritism in the Bureau.

At the same time, there are several other problems in the NABU functioning, which have a destructive nature for the state and its economy, and have also begun to transform into a threat of national importance, namely:

• Severe violations of fundamental human rights, in particular public illegal detentions of citizens, have become a routine of the Bureau.
• Lack of understanding by the NABU detectives of the principles of entrepreneurial activity guaranteed by the Constitution and criminalization of ordinary business relations.
• Violation by the NABU leaders of the presumption of innocence protected by the Constitution for the purpose of self-promotion, public "appointment" of those guilty of crimes in advance of the court verdicts, in particular, by editing and showing exciting "branded" videos having nothing in common with reality.
• In the NABU/SAP practice there are numerous cases of prosecution based on assumptions, rather than on proper and admissible evidence, which is a violation of yet another constitutional norm (Part 3, Article 62 of the Constitution).

These brutal violations of the Constitution and other acts of the Ukrainian legislation became possible "thanks to" the lack of real control over the work of the law enforcement agency, the deliberate FAILURE to conduct legally required annual external audits of the Bureau, and the undisguised support (for grants) of this mess by individual civic activists.

Considering all the above, I have very deep doubts about the possibility of correcting the systemic "failure" of the NABU only by Mr. Uglava dismissal together with several other employees of the Bureau who took part in leaking secret information from the depths of this body.

Bohdan Ustymenko - international lawyer

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