According to information of the Anti-Corruption Action Center, the Presidential Office (OP) gave the instruction to prepare draft law that will allow to protect the deputy head of the OP Oleg Tatarov and legitimize schemes regarding transfer of his case from the NABU to the SBU. However, Tatarov denies this draft law and calls it the fake. Thus, the AntAC publishes the text of draft law and its analysis.
The Anti-Corruption Action Center received the text of draft law and publishes it. In addition to the text, the organization has internal official documents that confirm fact of preparation of such text.
Documents that we have received show that the Prosecutor General was involved in the process of developing the draft law to protect Tatarov from the NABU. Iryna Venediktova gave her deputies official order to make proposals to it. They, as well as number of structural departments, did so. All these facts are recorded in official documents of the PGO.
We should note that innovations in draft law directly contradict commitments that Ukraine has made. The exclusive jurisdiction of the NABU over TOP-cases, right for international cooperation, and guarantees of non-interference in its work were conditions for cooperation with the IMF, the European Union, and were highly supported by partners in the United States of America.
The most harmful change concerns the NABU’s jurisdiction, namely the list of cases that the bureau should investigate. Exclusive jurisdiction of the NABU is being destroyed by eroding it and adding petty corruption.
Yes, today jurisdiction of the NABU is part of either corruption or corruption-related crimes (abuse of power, acceptance of illegal benefit, theft, laundering, etc.) provided that these crimes are committed either by TOP official, or size of subject of the crime or damage from it exceeds 1 million 135.000 UAH (as of January this year).
The OP proposes to remove conditions of jurisdiction regarding TOP subjects of the case and amount of the crime. In practice this means that the NABU will have to deal with petty corruption, namely bribes, for instance, to patrol police officers or officials of village councils.
Such blurring of functionality contradicts purposes for which the NABU was created. In such circumstances the bureau, where the staff number is hundreds times smaller than in other bodies, will have to spend time on petty crimes.
For your understanding: the maximum number of staff of the NABU, according to the law, is 700 people, only 246 of which are detectives. While in the SBI it is 1,600 people, in the police, which is now engaged in petty corruption, it is 140,000 people.
Taking into account statistics, the workload of detectives of the NABU and prosecutors of the SAPO will increase more than 10 times. And there will be no time to investigate top-level corruption.
In addition, the Prosecutor General is offered to give the right to take any case from the NABU. Today, part 5 of article 36 of the CPC contains direct ban on entrusting the investigation of cases that are in the jurisdiction of the NABU to other bodies. This norm is specially created as safeguard against interference in the work. They propose to change it, by adding the exception that this ban could be violated by decision of the Prosecutor General.
This innovation clearly legitimizes events that took place during investigation in case regarding Tatarov. They used illegal decision of Pechersk court and illegally changed the body that conducts investigation. So, they just want to legalize such scheme without any court decision. Today, any cases of the NABU, such as abuses in Privatbank or Rotterdam+, could be taken away from the NABU by single decision of the Prosecutor General.
Another change is change of jurisdiction of the Anti-Corruption Court. Today, the jurisdiction of the HACC is defined by clear list of articles and is broader than the NABU’s cases. Instead, the draft law proposes simply to rewrite that the HACC deals only with those cases that the NABU does.
This will allow to take cases at the same time from the HACC when they take them from the NABU. As for the same case regarding Tatarov, when they took it away from the NABU and the SAPO, the case still remained under jurisdiction of the HACC. It is obvious that Tatarov and other subjects, whose cases they want to transfer in such manual mode according to the decision of the Prosecutor General, of the case aren’t satisfied with that.
But such paraphrase of jurisdiction of the HACC at the same time significantly increases risks of declaring the court unconstitutional. After all, such wording gives the court characteristics of special court, exclusively dependent on cases of the NABU. Whereas now the court is specialized in certain category of cases.
Similarly, the bureau and the SAPO actually remove possibility of direct cooperation with foreign law enforcement agencies. Instead, the draft law clearly states that such cooperation can only be implemented through the Prosecutor General’s Office.
At the same time, back in 2019 the President Zelenskyi personally signed on the fact that the NABU in practice would have opportunity for direct international cooperation and said that: “implementation of the Bureau’s powers to conduct international cooperation was blocked due to lack of Poroshenko’s political will and in order to interfere in work of the NABU”.