New NABU Director: has Bankova really “hacked” the competition and how the Bureau will continue to work?

by Olena Shcherban, orignally published by ZN.UA

The competition for the selection of new NABU director had every chance to be successful: the rules established by the legislation and the balanced presence of international experts in the selection commission with the casting vote gave reasons to talk about the very real possibility of appointing an honest, independent and professional candidate as new head of the Bureau. However, the appointment of Semen Kryvonos to the position caused, rather scepticism, fear and doubt.

Why did this happen? What lessons from this process should be learned by the public and everyone who is really interested in seeing the future of Ukraine without corruption? Are there any chances of preserving the independence of the Bureau and in general the entire anti-corruption bloc NAPC—NABU—SAPO—HACC?

However, before looking for answers to these powerful internal challenges for the country, which is fighting against an external aggressor, it is necessary to reflect on the issues from which the new director of the NABU starts.

Even before the interviews during the competition, the key issue was Kryvonos’ connections with the current deputy head of the president’s office Oleksiy Kuleba through his wife, who worked with Kuleba, as well as close ties with Kuleba’s business partner.

During the interviews with Semen Kryvonos, it became clear that he had a wide circle of connections and friends among the state leadership, including Mikheil Saakashvili’s team and politicians close to him in power. This can be both pros and cons for a person in the position of the NABU director.

Special attention was also drawn to the fact that Mikheil Saakashvili once thanked Andriy Yermak for his support in the appointment of Semen Kryvonos to the position of head of the State Inspection of Architecture and Urban Planning (SIAM).

SIAM, which was headed by Kryvonos, is an institution that replaced the infamous State Architectural and Building Inspection, in whose activity experts also see many corruption risks. This in itself (even without taking into account the series of odious actions of Kryvonos in this position, which were reported by the media) creates a field for numerous manipulations. Will the SBU or the SBI one day want to carefully analyze the work of the director of NABU during his leadership of SIAM, and will there not be any “hooks” or “compromise” for the new director of the Bureau after such an analysis?

At one time Kryvonos himself refused to take the post of head of the Odesa Territorial Unit of the NABU after winning the competition. The reason for the refusal, apparently, was the story published by Slidstvo.Info journalists regarding his declarations. Kryvonos himself explained this by the fact that he did not want to cast a shadow on the newly created institution, but he considers this refusal to be a mistake.

During the interview, quite a lot of questions to Kryvonos concerned his assets. For example, the purchase and subsequent sale of a land plot with an area of 2 hectares, which belonged to the forest fund and was registered in violation of the law. At that time, Kryvonos worked as a lawyer in the property rights registration department of the Obukhiv Justice Department. There is also a strange story, when his wife managed to buy out the right to demand the debt of her parents amounting 26 million UAH for only 24,000 UAH. It is interesting that, in our opinion, the commission did not too thoroughly clarify these issues with the candidate.

The fact that Kryvonos is actually the only non-law enforcement officer among all 11 candidates who passed the final interview is also indicative. Of course, he has a legal education, a bar certificate and management experience. However, will he be able to effectively manage a law enforcement agency designed to fight TOP corruption?

It seems that Kryvonos himself does not fully understand the seriousness of the risks listed above. The existence of these doubts is bad both for the country and for the institution itself.

Why international experts did not save the competition?

It should be explained right away that provision of the law of the need for the commission to determine not one winner, but three, created a field for the authorities to manoeuvre. From the beginning, this norm was formulated by the political leadership of the state with a very simple goal — to get the opportunity to bargain with candidates before the appointment and to find loyal ones.

And now it is worth being honest in the main lesson of the competition: all hopes in this process were precisely on international experts and their casting vote. However, in the final voting, we witnessed that opinions were banally divided. Why? Unfortunately, there is currently no answer to this key question. But experts did not use their casting vote in the process. The result of this was a compromise between two international experts and Ukrainian members of the commission in the form of not the top three, but the three of those who pleased both sides. Not a single representative of the Main Division of NABU detectives made it to the finals, which in itself is nonsense.

Another no less significant error of this process was the rules defined by the commission itself at the beginning of the selection. The commission decided that the key stage in the selection of candidates should be tests of knowledge of legislation and general skills. According to their results, the final 20 should have remained. Therefore, out of 70 candidates, only 22 were admitted to the interview stage. However, the admission of 30 or 40 candidates to the interviews would give the commission the opportunity to evaluate the other candidates much more thoroughly and banally have a larger choice.

It should be noted that during the competition, civil society constantly provided the commission with comments and observations on the procedures, pointing out problems. But the key ones were not taken into account. Obviously, having 20 candidates to interview was much more appealing than 30 or 40, given the time and rush. But is it possible to rush procedures when it comes to a key anti-corruption institution?

In fact, before the interview stage, the commission excluded from the competition one of the NABU detectives, Ruslan Gabrielyan, who is also mobilized to the Armed Forces of Ukraine. This decision was motivated by the candidate’s apparently insufficient managerial experience (the law requires five years). However, the commission previously, by its own decision, allowed him to participate in the process, having the opportunity to check his experience, and later excluded him, based on the answers of the Prosecutor General’s Office. This fact alone indicates problems in the organization of the process.

Therefore, it can be concluded that even international experts and their right to have casting to vote are not a panacea to ensure a completely objective result. This is also confirmed by the selection process to the High Council of Justice. Those errors should be taken into account when modeling the future procedures.

Does this mean that all achievements, results and prospects of NABU have been lost?

Definitely not. NABU is an independent and already established institution. Of course, the Bureau has shortcomings and sometimes makes mistakes that need to be corrected. But even a completely pro-governmental candidate for the position of director, having a clear task to destroy the bureau, will not be able to do it quickly and easily.

First, the NABU director has almost no legal leverage over the procedural activities of NABU detectives and the course of investigations. Secondly, NABU has a long-established and mostly valuable and motivated team, which is used to working in conditions of systemic challenges. Therefore, every sharp attempt at influence or pressure will be suppressed first of all from the inside.

However, one must be aware that in the presence of such attempts to influence the investigation, the effectiveness of the work will definitely decrease. After all, along with the main functions of the team, it will also have to counter internal challenges. And we, as a civil society, instead of advocating progressive changes for the Bureau, will most likely have to continue to fend off internal attacks in the institution.

As already mentioned, the director of the Bureau is primarily vested with administrative powers. However, there are quite a lot of such powers and they are important. The director can change the structure and staff of the bureau. These powers can be used, among other things, to purge inconvenient employees. In the same way, the director will be able to implement, for example, attestation procedures, which can also be used for both useful and harmful purposes. The NABU director decides on the issue of fines imposed on employees based on the decision of the disciplinary commission. And this is only a small list of administrative tools of influence both on the institution as a whole and on its employees. And if the new leader turns on these mechanisms not in favour of the NABU, then it will only take time to gradually turn the situation in the wrong direction.

It is also necessary to understand that the director of NABU has access to many secrets of the bureau by his position. Therefore, another significant risk is information leakage. Considering the degree of integration of the new Director of the Bureau in the national political life, it is advisable for Semen Kryvonos to completely distance himself from the planning of operations and investigations of the Bureau. At the same time, in the event of a leak of information, all those involved, including the director, must undergo proper checks, including the use of a polygraph.

The law provides for an annual independent audit of the Bureau. And this is good news. A negative audit opinion is almost the only possibility to fire a director if he is a weak link. The audit should be conducted by a commission of three persons proposed by international partners. Spoiler for critics of international experts during the competition: the configuration of the commission of auditors is better than the selection commission, because it completely excludes the component of political appointment of auditors, while in the selection commission half of it was determined by the government at its own discretion (politically).

What this means in practice: every step of the new director of the bureau must be monitored both in terms of internal and external issues of the NABU. Each fact of undue pressure or influence must be recorded and subsequently provided to the auditors – the bureau has all the prescribed procedures for this.

Under these circumstances, an important indicator will also be what decisions the director will make in the first year of work, how transparent they will be, whether civil society will be involved in the discussions before they are made. In the end, if the new director wants to prove the opposite, then the level of his openness will be the key factor.

The AntAC will especially carefully monitor how the above-described processes work in the Bureau. And even if the problems are not recorded within the institution, we will definitely record them both publicly and for a future audit.

New challenges for SAPO, HACC and NAPC

Everything described above also means that the strengthening of the Specialized Anti-Corruption Prosecutor’s Office is becoming even more urgent. After all, in case of problems in the work of the bureau, prosecutors are those procedural figures who can be a lifeline in such a situation.

The law enforcement committee of the parliament recently rejected draft law No. 8402, which provided for the SAPI reform. The head of the SAPO should be protected from political removal from office for some minor disciplinary misconduct as may happen right now. Obviously, the government will resist strengthening the institutional independence of the SAPO until the reform becomes a key demand of international partners. The latter, unlike many internal stakeholders, perfectly understand why the anti-corruption system should be independent. Some of the results of its work due not be liked by one or another part of society because of its independence, which also leads to the need to protect it from outside influences.

Understanding the weak links of the long process, we must rely on the support of international partners. At the same time, improving procedures and cutting off the influence of the human factor in this area as well.

We should not forget about the improvement of the criminal procedure, issues of work of the High Anti-Corruption Court, which critically needs at least an increase in the number of judges. NAPC, public trust of which has been shaken due to the agency’s position regarding odious law No. 5655, is currently undergoing a performance audit. Therefore, the challenges facing the anti-corruption bloc are very serious.

Considering the fact that due to the war, more than 60% of Ukraine’s budget is the funds of international partners, they should also react if they see the slightest hint of wrong work by the NABU.

We really hope that Semen Kryvonos perfectly understands how much the trust of international partners in us and their willingness to invest in the reconstruction of Ukraine after the war depends on his actions.

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