Poroshenko attempts to control anti-corruption investigation and prosecution
Civil society organizations and international donors have had high hopes for the National Anti-Corruption Bureau, a law enforcement agency with a mandate to investigate the corrupt conduct of senior state officials.
The bureau already has a director and his staff, a building for their operations, and the selection process for investigators has already begun.
However, the bureau will be unable to start and develop any corruption investigations without the aid of anti-corruption prosecution, which has yet to be established.
According to the Ukrainian Criminal Procedure Code, the prosecutor is obliged to provide procedural guidance and oversight of the work of the bureau’s investigators. In other words, the prosecutor has the power to give obligatory instructions to the investigators, to change the actual participating investigators, and to approve the majority of court requests for obtaining evidence, like bank account information.
Without the prosecutor, it will be impossible for the bureau’s investigators to receive a search or asset seizure warrant. Furthermore, the prosecutor himself can make a decision to change the direction and tactics of an investigation and/or conduct investigative actions himself. It is up to the prosecutor to approve a notification of suspicion as well as official indictments presented in court. Finally, the prosecutor will present the case files and defend in court all the evidence collected by investigators after the court begins hearing the case. So, the success of the anti-corruption project in Ukraine now directly depends on who will be the prosecutors delegated to work on bureau’s criminal investigations.
Currently the members of the parliamentary coalition, the Presidential Administration and the international donors of Ukraine are negotiating a compromise which must guarantee the highest level of independence of anti-corruption prosecution in Ukraine.
The Constitution, unfortunately, does not allow the establishment of a separate prosecuting agency, but it does permit the formation of a specialized prosecution unit under the formal umbrella of the Prosecutor General’s Office of Ukraine. Thus, the key issue remains how to minimize the influence of the general prosecutor on anti-corruption prosecution and make the link between the two as formal as possible.
To make this possible, the following guarantees have to be included in the law:
The head of the anti-corruption prosecution must be selected through a competitive, independent selection procedure, conducted by an independent selection commission.
The general prosecutor should be allowed to appoint only one candidate, approved by the selection commission.
The selection procedure must be transparent and broadcast online.
The head of the anti-corruption prosecution must have the right to appoint his own staff and anti-corruption prosecutors without the approval of the general prosecutor.
On May 21, parliament passed in its first hearing Draft Law 2667, which abolishes all of the above mentioned guarantees.
Thus, the new draft law suggests a very dangerous model for the selection of the head of anti-corruption prosecution.
It has been proposed that the selection commission should be composed of 10 members: five appointed by the general prosecutor and five by the parliament. Such an approach contradicts the basic principle of checks and balances, which should definitely be considered when forming independent state institutions, especially those with criminal procedure powers.
In Ukraine, the general prosecutor is appointed by the president and approved by the parliament, where the president has the largest political faction present.
In reality, this means that the president will have direct political influence over the majority of the members on the Selection Commission.
In fact, it will be the president who will appoint the anti-corruption prosecutor and will cover himself by a good-looking “competitive process.”
This fact undermines the fundamental principle of the political independence of the anti-corruption prosecution and the National Anti-Corruption Bureau, which should impartially investigate cases of corruption of senior state officials without being biased.
Once the National Anti-Corruption Bureau and/or the anti-corruption prosecution will be controlled by any of the political leaders or branches of power, the newly set anti-corruption institutions will turn into a powerful weapon for political intrigues and games, through which political opponents could be investigated selectively.
To avoid political control of the anti-corruption prosecution head, the law should contain a very simple compromise: Seven members of the selection commission should be appointed by parliament and three by the general prosecutor.
Such a formula will introduce balance between different political players in Ukraine, as no one will have a guaranteed majority on the selection commission. Usually, decisions of the parliament are quota-based, meaning that parties which are members of the parliamentary coalition will delegate members of the selection commission proportionally.
Ukraine has a rare chance to reform its criminal justice system starting through its new anti-corruption investigative and prosecuting bodies. Establishment of the National Anti-Corruption Bureau is a very important step forward in this process, which was possible merely because of the joint demands of international donors and civil society organizations. But the key for a successful and effective bureau is independent, professional and anti-corruption prosecution.
The one who controls the anti-corruption prosecution will be the one who will control the National Anti-Corruption Bureau. Therefore, a system of checks and balances must be introduced carefully and wisely into the legal framework of anti-corruption institutions.