By Mykola Khavroniuk
(see original publication)
1. According to Art. 1 of the Law of Ukraine “On the National Anticorruption Bureau of Ukraine” (hereinafter – the Law) The National Anticorruption Bureau of Ukraine (hereinafter – the National Bureau, NABU) is a state law enforcement authority entrusted with the prevention, detection, termination, investigation and disclosure of corruption offences referred to it and the prevention of new ones.
2. This body was established to fulfil Ukraine’s commitment to ratify the UN Convention against Corruption on 18 October 2006. Art. 36 “Specialized Bodies” of the Convention stipulates that “Each State Party shall ensure, in accordance with the fundamental principles of its legal system, the existence of a body or bodies or persons specialized in the fight against corruption through law enforcement measures. Such authority or authorities shall be provided with the necessary autonomy, in accordance with the fundamental principles of the legal system of the State Party, to enable them to perform their functions effectively and without undue influence. “
That is why the Independence of the National Bureau and its employees envisaged by the Law (paragraph 5 of Part 1 of Article 3) is defined as the basic principle of its activity.
3. In general, independence is a complex concept and involves a set of institutional, personal, functional and financial components. Institutional independence is reflected in the provision enshrined in the Law, according to which the National Bureau is an independent state body. Personal independence implies creating the conditions for the heads and employees of the National Bureau to make their own decisions within their competence. The financial independence of the National Bureau is determined by the adequacy of its own financial resources to fulfil its tasks.
Functional independence lies in the performance of the National Bureau’s functions without the intervention of any public authority, including parliament, government or the head of state. Even if the policy of a higher state authority threatens to fulfil the main task of the National Bureau, the National Bureau may not support it. That is, for any change in the political situation, if not changed defined in Art. 1 of the Law the task of the National Bureau is continue to perform this task effectively – “counteracting criminal corruption offences committed by senior officials, authorized to perform the functions of state or local government, and pose a threat to national security, as well as the implementation of other anti-corruption measures provided by law”.
4. Art. 4 of the Law specifically determines what guarantees the independence of NABU. At the first place is the special procedure for competitive selection of the director of the National Bureau and an exhaustive list of grounds for termination of powers of the director of the National Bureau, which are defined by this Law.
5. Part 1 of Art. 6 of the Law states that the Director of the National Bureau shall be appointed and dismissed by the President of Ukraine in accordance with the procedure established by this Law, and in paragraph sixteen of Part 4 of this Article it is emphasized that “the director of the National Bureau may not be discharged and the decree of the President of Ukraine on his appointment may not be cancelled except for the reasons stated in this part ”(see part 4 of Article 6 of the Law).
6. The Verkhovna Rada of Ukraine may also decide on the dismissal of the Director of the National Bureau from office (paragraph two of Part 1 of Article 6 of the Law), but exclusively:
a) on the grounds specified in paragraphs 6-12 of part 4 of this Article, and
b) at the proposal of not less than one-third of the Members of Parliament of Ukraine from the constitutional composition of the Verkhovna Rada of Ukraine.
These two conditions must exist simultaneously. That is, if there is an offer of 150 MPs, but there is no corresponding ground defined by clauses 6-12 of part 4 of Art. 6 of the Law, or if there is such a ground, but the proposal has not been submitted, the dismissal of the Director of the National Bureau is impossible.
7. At present, there is no reason to dismiss the NABU Director provided for in paragraphs 6-12 of Part 4 of Art. 6 of the Law. As follows:
clause 6 – no guilty verdict of the court against the acting NABU director was rendered;
clause 7 – the current director of NABU did not terminate his citizenship of Ukraine and did not move to a permanent residence outside Ukraine;
clause 8 – no court decision found inconsistency with restrictions on compatibility and reconciliation with other activities envisaged by the Law of Ukraine “On Prevention of Corruption”;
clause 9 – neither the National Agency for the Prevention of Corruption nor anyone else established the fact that the declaration of a person authorized to perform the functions of the state or local self-government was submitted late;
clause 10 – the current Director of NABU did not acquire the citizenship of another state;
clause 11 – independent assessment (audit) of the National Bureau’s activities, provided for by Article 26 of the Law, has not been carried out, and therefore there is no opinion of the Audit Committee on the inefficiency of the National Bureau
clause 12 – there is no debt of the current director of NABU for child support payments, the aggregate amount of which exceeds the amount of the corresponding payments for twelve months from the day of transfer of the executive document to enforcement;
clause 13 – there is no court decision to recognize the assets of the current NABU Director or the assets acquired on his / her behalf by other persons unjustified and their recovery into state income or in other cases provided for in Article 290 of the Civil Procedure Code of Ukraine.
8. The provisions of clause 2 of Part 1 of Art. 13 of the Law, according to which a person who has been administratively charged for the commission of a corruption offence or held in court for the commission of a deliberate crime cannot be appointed to the post of the National Bureau, does not concern the grounds for dismissal from the position of acting head or official of NABU.
If Article 6 of the Law specifies the grounds for dismissal, Art. 13 specifies grounds for the appointment. If we compare the corresponding lists of positions, it is noticeable that they do not coincide. In addition to the difference already noted, there are others. For example, a person may be appointed to the position of director of the NABU, there is a court decision to declare his assets unjustified is enacted or one stating that he has failed to file a declaration, but in the case of his appointment, he must be dismissed.
9. The director of NABU is not subject to disciplinary action under the Law, since there is neither a body that could make a decision on him or her for bringing such responsibility or proper procedure. The latter is also part of the guarantees of the independence of the NABU director.
The procedure of disciplinary responsibility of the Director and employees of NABU is governed by the provisions of the Law, which are special for NABU employees and are subject to application, unlike the provisions of the Code of Labor Laws (Art. 147-1), which are general and cannot be applied to the Director and employees if they contradict the special order.
According to Art. 28 of the Law, all decisions on the application of disciplinary sanction to NABU employees based on the opinion of the Disciplinary Commission are taken exclusively by the Director of the National Bureau. Obviously, he cannot make such a decision on himself, based on the principle of nemo judex in causa sua – no one is a judge in his case. According to the Law, the National Bureau is not a central body of executive power, and its Director is neither a member of the Cabinet of Ministers of Ukraine nor the head of a central body of executive power. Therefore, the provisions of paragraph 12 of Part 1 of Art. 42, Art. 45 of the Law of Ukraine “On the Cabinet of Ministers of Ukraine” on disciplinary responsibility do not apply.