by Olena Shcherban, originally published on UP
The competition for position of the head of the Specialized Anti-Corruption Prosecutor’s Office seems to be over: there is winner who, according to calculations, got the most points and passed all stages of the competition determined by the Commission.
However, the final result is still not legally established. There is no formal decision of the Commission regarding approval of result and sending winner of the competition for appointment.
The competition is currently suspended and blocked. Reasons for this are completely artificial, as authors of such scenario are obviously trying to confuse public and international partners with legal norms.
We decided to explain what the law and the rules of procedure of the commission’s work state, as well as how it corresponds to events taking place with the competition.
Reasons for blocking the process of winner’s nomination were initially comical and were explained with a fatigue and illness. Further, to give at least some validity to this mess, authors of attempts to disrupt clung to some kind of reading of the law.
In order to avoid the appointment of an unfavourable and threatening candidate for Bankova, part of the Commission (especially its head Kateryna Koval) began to point to one phrase in the law and procedure of the Commission. In their opinion, this phrase is the obstacle to making the final decision.
Here is how it reads in the law (paragraph 9, part 2, article 8-1):
Candidates for positions of the head of the Specialized Anti-Corruption Prosecutor’s Office, his first deputy and deputy, selected by the Competition Commission, are submitted for consideration of the Prosecutor General only after the Competition Commission receives confirmation of their compliance with requirements of the Laws of Ukraine “On Lustration” and “On Prevention of Corruption”, as well as to obtain access to state secrecy in accordance with the Law of Ukraine “On State Secrecy”.
Here is quote from the rules of procedure of the Commission (paragraph 6, article 28 of the Procedure):
The candidate selected by the Selection Commission for the administrative position provided for in paragraph 1, part three, article 39 of the Law of Ukraine “On the Prosecutor’s Office” shall be submitted for consideration to the Prosecutor General within three working days after receiving the confirmation by the Selection Commission of compliance of requirements with the Laws of Ukraine “On Lustration” and “On Prevention of Corruption”, as well as obtaining access to state secrecy in accordance with the Law of Ukraine “On State Secrecy”.
From both provisions it is clear that in order to refer the candidate for appointment, the Commission must have confirmation of the person’s compliance with:
- requirements of the Law of Ukraine “On Lustration” – this is about availability of the certificate drawn up based on results of the lustration examination. Each official passes such examination once. If it is established that he worked in leading positions during Yanukovych’s presidency, then this person cannot hold senior positions in the government.
That means that such information about persons working in state bodies is already contained in the special lustration register. Being there is actually the ban on a further career in state bodies. Although not for everyone, because some managed to circumvent this ban.
- requirements of the Law of Ukraine “On Prevention of Corruption” – this is about presence of the submitted declaration and its authenticity, absence of penalties or court decisions related to corruption offences. This information is contained in the so-called “register of corrupt officials”.
- to obtain access to state secrecy, according to the Law of Ukraine “On State Secrecy” – if the candidate has such access, it is confirmed by information from the responsible body, namely the SBU. If such access is not available, the issue of granting it is decided by separate procedure and may be granted even after the appointment.
All three points of information are part of the special vetting (background check). If special vetting is the process of checking whether certain information is valid (including information that candidates themselves submit to the competition), then the certificate on its results, which contains information on all 3 points, is its result.
The purpose of obtaining this information is to understand whether the candidate has not deceived the Commission, whether documents submitted by him are valid, and whether there are no formal obstacles to his appointment, for instance, criminal record for corruption.
Usually, in most competitions, special vetting takes place at the final stage, namely before signing the decision on the appointment. However, in the competition to the SAPO, the Commission decided that special vetting is conducted earlier, immediately after testing candidates for knowledge of the law and general abilities.
It is obvious that this was done at the beginning of the process in order not to expect its results at the final stage and not to spend time on interviewing those candidates who do not pass the special vetting.
That is why the NACP has given official explanation to the winner of the competition for the position of head of the SAPO that there are no repeated special vetting procedure.
This means that results of the special vetting, which are already available with the Commission for the selection of head of the SAPO and in the HR department of the Prosecutor General’s Office are “the confirmation of compliance of candidates with requirements of the Laws of Ukraine “On Lustration” and “On Prevention of Corruption”, as well as obtaining access to state secrecy in accordance with the Law of Ukraine “On State Secrecy”.
But the Presidential Office is clearly not happy with the scenario of quick and unhindered appointment. That is why the issue of repeated special vetting arose. In fact, the Commission once again wants to get the information that they already have.
What is it for? Firstly, it protracts time. Secondly, it gives new levers of influence and disruption of the process.
On the one hand, the special vetting is quite simple and banal process. The law clearly defines its components and subjects (article 56 of the Law of Ukraine “On Prevention of Corruption”):
- whether the person has criminal record for corruption or other offences;
- whether there are any administrative penalties for corruption-related offences;
- whether the information in the declaration is authentic;
- whether there are corporate rights;
- state of health (in terms of registration in psychoneurological or narcological institutions), education, availability of scientific degree, academic title;
- obligation of person regarding the performance of military duty;
- the person has access to state secrets if such access is required in accordance with the qualification requirements for particular position;
- extension of the ban on person to hold the regarding position provided by provisions of the Law of Ukraine “On Purification of Power”.
From this list it is clear that if the person has already passed vetting and found that his declaration does not contain problems, it has not changed since the special vetting (April 2021). Or unlikely that diplomas of education suddenly became forged.
The same thing is with the lustration certificate. The person passes such examination once and if he meets requirements, it won’t be changed.
Perhaps the only mechanism to change something in the candidate’s data through special vetting is the issue of access to state secrecy clearence. This mechanism has been used many times in competitive processes.
So, in 2015 during the competition in the NABU one of finalists didn’t pass the special vetting under strange circumstances. At the same time, reasons for not passing were classified by the Security Service of Ukraine.
There is also the case when deputy Prosecutor General Gyunduz Mammedov was deprived of access to state secrecy, which deprived him of the opportunity to conduct very important proceedings.
Mere verbiage with the need for additional special vetting may also be necessary for protracting the time. This makes it possible to advance and accelerate further scenarios of influence on the process. For instance, there may be additional decisions of KDAC, but some that will prohibit the Commission from even meeting and making decisions.
We should recall that in December, KDAC undermined competition for the head of the SAPO by non-existent rule of law. Therefore, the Presidential Office can choose strategy to wait for the commission’s appeal against this decision of KDAC. This may leave Iryna Venediktova in the leadership of the SAPO for at least another six months. Not to mention that the very fact of repeated vetting is illegal and can be used in the court to appeal.
It is interesting that the Presidential Office officially dissociated itself from the decision of KDAC and pointed out that the Commission should continue its work. We could believe this if part of the Commission controlled by the Presidential Office and selected by the Parliament banally approved results of its own competition.
However, they did not stop there. The Prosecutor General’s Office was also involved in blocking the process, and played along with the head of the Commission Koval without providing any response to her letter about the need to confirm already known and available information.
It was the Prosecutor General’s Office that began to illegally demand the re-vetting of candidates and they began to conduct it at least regarding one of them.
It was the Prosecutor General’s Office that begun to lose documents of actual winner of the competition.
The inclusion of these resources, on the contrary, demonstrates and once again confirms that these processes are managed at Bankova. And decision of KDAC is one of the levers in hands of Bankova, especially against the background of ignoring the presidential draft law regarding elimination of odious court.