On February 15, the Cabinet of Ministers approved the composition of the Selection Commission for the position of director of the National Anti-Corruption Bureau of Ukraine (Selection Commission). However, illegal provision was added to the document, which in fact stops and delegitimizes the competition for the position of director of the NABU, and may also affect the selection of head of the SAPO. We’ll explain the legal details.
The Commission for the selection of head of the NABU included three persons appointed by the Cabinet of Ministers (Oleksiy Savchuk, Kyrylo Legkykh, Mykola Kucheryavenko) and three persons appointed by the Cabinet of Ministers based on proposals from international and foreign organizations (Drago Kos, Karen Greenaway, Povilas Malakauskas).
The text of the Order of the Cabinet of Ministers of Ukraine, in addition to the decision to approve the composition of the Commission, contains another provision in paragraph 2:“To establish that according to this order powers of a member of the above-mentioned commission, who is member of the Selection Commission for selection of the Specialized Anti-Corruption Prosecutor, shall begin on the day following his withdrawal from the Selection Commission for selection of the Specialized Anti-Corruption Prosecutor”.
Apparently, this paragraph applies to Drago Kos, who, according to the decision of the Council of Prosecutors, is a member of the Commission for holding the competition for administrative positions in the Specialized Anti-Corruption Prosecutor’s Office (the official name of the commission).
Such norm is illegal and creates significant legal uncertainty, which can be used to appeal the decision of the Cabinet of Ministers of Ukraine to determine the composition of the Selection Commission or to appeal decisions of the Selection Commission.
“The Government needs the illegality of this provision to block the competition in the NABU if Drago Kos refuses to execute clearly illegal condition and withdraw from the SAPO commission or have serious reason to cancel the work of the NABU Commission in future. As for the competition in the SAPO, in this way, the Office of the President is blantly trying to throw Drago out of the process in order to complete the competition in favor of “their candidate” without Drago’s vote”, member of board at the AntAC Olena Shcherban commented.
Arguments regarding the illegality of such condition:
1) Lack of powers of the Cabinet of Ministers of Ukraine and legal grounds to establish “delayed” acquisition of powers by members of the Competition Commission
First of all, there are no legal grounds to impose such requirement until Drago Kos takes office. He meets all requirements of the Law regarding members of the Selection Commission and has the necessary experience and there are no circumstances that prevent him from becoming a member of the Selection Commission from the date of entry into force of the CMU’s Order.
In particular, members of the Selection Commission may not be persons authorized to perform functions of the state or local self-government, in accordance with the Law of Ukraine “On Prevention of Corruption”. Although Drago Kos is a member of the Commission for holding competition for administrative positions in the SAPO, he is not one of the persons authorized to perform functions of the state or local self-government. The exhaustive list of such persons is specified in paragraph 1, part 1, article 3 of the above-mentioned Law.
Being member of both commissions does not create the conflict of interest and does not lead to circumstances that may cast doubt on Drago Kos’ impartiality.
Part 2, artice 19 of the Constitution of Ukraine requires, in particular, from bodies of state power and their officials to act only on the basis, within powers and in the manner prescribed by the Constitution and laws of Ukraine.
The Law of Ukraine “On the National Anti-Corruption Bureau of Ukraine” very clearly regulates the Competition procedure and the role of the CMU and does not give the Government powers to determine certain conditions under which the person acquires powers of a member of the Commission for the selection of director of the NABU, or link the acquisition of these powers to certain legal facts.
Thus, the Cabinet of Ministers has gone beyond its powers by adopting order with such special provision regarding Drago Kos.
At the same time, the Government also violated the principle of equality between members of the Selection Commission, as all of them are endowed with the same rights and responsibilities in accordance with the Law, have the same requirements for their qualities and experience, the single procedure for appointment and termination of powers has been established for them. Therefore, the establishment of special procedure for the acquisition of powers for a single member of the Competition Commission is inappropriate and discriminatory.
2) The credibility of the Selection Commission will be questioned until Drago Kos takes the position
Paragraph 13, part 3, article 7 of the Law of Ukraine “On the National Anti-Corruption Bureau of Ukraine” stipulates that the Selection Commission is fully functional in case of its approval in full composition, provided for by part 3 article 7 (namely, all six persons).
However, due to mentioned paragraph, there is uncertainty regarding peculiarities of the acquisition of powers by one of the members of the Seletcion Commission. On the one hand, the Government approved the composition of the Commission and six persons mentioned in the appendix to the order are full composition of the Commission. On the other hand, in fact, only five people out of six are members of the Competition Commission, as required by the law. That means that the Commission will not be able to start its work legally until this illegal condition is eliminated.
If the Commission starts its work before Drago Kos takes position, all its decisions during this period of time may be appealed given the uncertainty about powers of the Commission in such limited composition.
3) The impossibility to implement illegal condition in paragraph 2 Order of the Government
The Government made a special procedure for acquiring powers established for “member of the above-mentioned Commission who is member of the Competition Commission for the selection of the Specialized Anti-Corruption Prosecutor” – however, none of six persons appointed by the Government is member of the Commission with such name. Drago Kos is member of the Commission for holding the Competition for Administrative Positions in the Specialized Anti-Corruption Prosecutor’s Office.
Accordingly, Kos cannot withdraw from the Competition Commission for the Selection of the Specialized Anti-Corruption Prosecutor, to which he does not belong and which does not exist.
4) The risk of blocking activities of the Selection Commission
Even if we assume that the Selection Commission can start its activities with 5 members, the approach applied by the Government eliminates the established decision-making procedure of the Competition Commission in part 4, article 7 of the Law of Ukraine “On the National Anti-Corruption Bureau of Ukraine”.
Decisions of the Commission are made by 4 votes, at least 2 votes must be given by international experts. If no decision is made for some reason, the repeated voting shall be held; if 4 members of the Commission could not support a decision even in repeated voting, the decision for which at least 3 members of the Competition Commission voted is considered adopted, at least two of whom were delegated by international and foreign organizations.
This provision was intended to avoid delays and blockages by members of the Commission, determined by the Government itself. However, the norm of “prevailing voice” of international experts will not work in practice if there are only 2 members from among international experts.
Therefore, any decision will require the support of at least one member of the Commission, delegated independently by the Cabinet of Ministers of Ukraine, which restores risks of delaying the competition and gives “blocking effect” to the government quota in the Commission.
The illegal decision of the Government is also the attempt to “throw out” Drago Kos from the Selection Competition for holding administrative positions in the SAPO
Drago Kos is international expert in the Commission, which is currently selecting the head of the SAPO. The selection process is in fact completed, but part of the Commission appointed by the Parliament refuses to certify the result of the competition, which is not supported by the Office of the President.
At the same time, Drago Kos is an active member of the Commission, who is not afraid to publicly criticize Ukrainian authorities and his colleagues in the Commission for disrupting the competition for the position of head of the SAPO.
The Government has apparently created illegal condition to encourage Kos to leave the SAPO Commission, because the competition for the position of director of the NABU will not be legally possible without him. At the same time, the Government is obviously counting on the fact that after his resignation they will be able to reshuffle the balance of power and votes in the SAPO Commission, including the already existing result of the competition for the position of head of the SAPO.
What is the solution?
The Government should immediately hold an extraordinary meeting to amend Order No.148-r as of February 15, 20022 and delete the paragraph which establishes the special procedure for acquisition of powers by one of the members of the Selection Commission (Drago Kos).