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17.12.18 19:17

Untestable results of anti-corruption reform

Author: Ukrainian News, Editorial Board

In post-Soviet Ukraine, law enforcement agencies have always interfered in the work of private business in search of corrupt rent or in order to prosecute opponents of the government (more often, both goals were combined). This practice has permeated social relations so much that counteracting the arbitrariness of the security forces and a decisive fight against corruption have become one of the main slogans of the Revolution of Dignity.

Untestable results of anti-corruption reform

However, the anti-corruption bodies created in the country after the victory of the Revolution, instead of changing the situation, became part of the problem themselves. The initiation of criminal cases with the subsequent "resolution" of issues, participation in conflicts between business entities on one of the parties, dubious ownership alienation schemes, all this remains part of the reformed Ukrainian law enforcement system and drive away investors from our country. The only difference is that reformed anti-corruption bodies are more actively and creatively engaged in public relations.

Despite the war that Ukraine has been waging for more than 4 years, news of the participation of security forces in a variety of business conflicts (the Security Service of Ukraine (SSU), the police, the Prosecutor General’s Office) are never off the pages of the media. Masks show in the capital IT companies, an attempt to capture the hotel complex "Resort Elite" in Zatoka near the city of Odessa, fights around the fitness center "Sofiyskiy" in the center of Kiev and Zhytomyr confectionery factory are just a few examples. Among the latest cases is the scandalous statement of the owner of the largest Development Company Poznyakizhilbud Arthur Mkhitaryan about the solicitation of a bribe of $ 1 million from the SSU for permission to continue building a residential complex in the capital.

More often, in economic chronicles, the newly created anti-corruption agencies as the National Anti-Corruption Bureau of Ukraine (NABU) and the Specialized Anti-Corruption Prosecutor's Office (SAP) appear as well.

In January 2016, NABU opened criminal proceedings against the top management of the Artemsol company on suspicion of using evaporating companies in selling the company's products. The case was later closed due to the absence of offence, as stated by the head of SAP, Nazar Kholodnitsky.

In March 2018, NABU and SAP petitioned the Solomensky District Court of Kiev to arrest the real estate of Odessa Airport and 75% of its owner’s shares for the subsequent transfer of assets to the management of the National Agency of Ukraine for identification, tracing and asset management.

In July 2018, there were reports that NABU was investigating the actions of Kiev officials, the management of the International Airport Kiev (Zhuliany) and Master-Avia LLC regarding possible abuses and waste of funds. Detectives believe that the private operator of the airport pays a low rent of the communal property of the airport.

In October 2018, the press service of the SAP reported the arrest of 10 persons suspected of taking funds from the state bank Oschadbank under headed by People's Deputy Stanislav Berezkin, the former owner of the creative group Kreativ. Among the detainees - the son of People’s Deputy Maxim. This is a loan of $ 20 million taken by the Creative group, at that time one of the largest agro-industrial companies in the country at the beginning of 2014.

What are the anti-corruption authorities in the country?

After the Revolution of Dignity, a system of anti-corruption bodies began to be created responding to the demands of society and under pressure from international partners. The first among them was the National Anti-Corruption Bureau of Ukraine.

Cases investigated by NABU are procedurally accompanied by the Specialized Anti-Corruption Prosecutor's Office headed by the Deputy Prosecutor General.

The National Agency for the Prevention of Corruption (NAPC) checks the declarations of civil servants, their lifestyle for compliance with income, discloses any information about corruption or abuse of office.

The National Agency of Ukraine for Identification, Tracing and Asset Management (ARMA) manages corporate rights and other property that is seized in order to preserve its value.

The Law of Ukraine "On Judicial System and the Status of Judges" provides for the creation of the High Anti-Corruption Court.

Anti-corruption effectiveness of new organs is still low

Roman Nasirov, the head of the State Fiscal Service, became the most senior official detained by NABU. In March 2017, he was suspected of causing damage to the state in the amount of 2 billion UAH by providing groundless tax installments to the companies of the deputy of the Verkhovna Rada of Ukraine Alexander Onishchenko, against whom NABU also leads a number of criminal cases.

In March 2017, Nasirov was removed from office, and in January 2018 he was dismissed. But he sued and was reinstated with payment of compensation for the time of forced absence. Nasirov joins the ranks of officials, whose high-profile cases cannot be brought to a logical conclusion by anti-corruption bodies.

Anti-corruption bodies are biased, therefore ineffective

Activists suspect that cases are stalled not coincidentally.

In March 2018, a real war broke out between NABU and SAP, when Prosecutor General Yury Lutsenko and NABU head Artem Sitnik accused Kholodnitsky of "spilling" information to suspects in NABU cases, exerting pressure on witnesses and prosecutors, helping the accused. NABU has published records on which a man’s voice of Kholodnitsky transmits information to a suspect in a case of abuse in the Odessa mayor’s office in which Gennady Trukhanov appears. They also talked about the help of Georgy Logvinsky, a deputy from BPP, who was being accused by NABU. Activists also accused Kholodnitsky of closing the case against the son of Interior Minister Arsen Avakov in the sensational case of buying backpacks for the National Guard at higher prices.

Another example is that NABU detectives have been investigating for a year and a half the case of gas production licenses, obtained by the company of Nikolai Zlochevsky, the odious ex-minister of the times of Viktor Yanukovich. But in August 2017, SAP decided to close the case for lack of corpus delicti. SAP was unable to pick up a mining license from the companies of Zlochevsky, as they were issued with violations. Prosecutors had half a year to file a lawsuit, but SAP did it after 7 months and lost all court instances according to bihus.info investigation.

The head of the Public Center for Countering Corruption Vitaly Shabunin revealed a mechanism for how SAP "leaks" high-profile cases: when submitting documents to the court, there are no mandatory receipts for payment of court fees, and this becomes the basis for the rejection of the package. When submitting a package of documents again, prosecutors attach a check, but not the original, but a copy, although the law requires the original.

NABU works selectively and does not pursue officials close to the President

Here is what investigative journalist Alexander Dubinsky writes about this: "At least one branch of this power, the presidential one, doesn’t have problems from the actions of NABU. All the officials close to Poroshenko are also protected from possible investigations by the NABU. The Bureau demonstrated it by the case of Gontareva, and today it’s a refusal to suspect a criminal offense against the friend of Gontareva, Ekaterina Rozhkova ".

By "the case of Gontareva," a journalist means closing the investigation on suspicion of declaring false information by the head of the National Bank of Ukraine (NBU) Valeria Gontareva regarding her vacation in the Maldives.

As for the NBU deputy head, Ekaterina Rozhkova, she was suspected of abusing her official position. She contributed to the removal of the "problem" status from the bank "Platinum", where she previously worked as acting chairman of the board. This allowed the bank to resume accepting deposits, but after 4 months it was declared insolvent. Many people have lost their deposits. NABU opened a criminal investigation on the basis of the so-called "Rozhkova videos", where she promises all possible assistance to her partners from the troubled bank.

Dubinsky claims that the Presidential Administration strongly did not recommend Sytnik to move the "Rozhkova case".

Head of NABU Artem Sitnik regularly meets the President

In July 2018, Radio "Svoboda" journalists documented the night meeting of the head of NABU Artem Sitnik and Petro Poroshenko. It was attended by People’s Deputy Alexander Granovsky. Mr. Sitnik confirmed that during three years of his position he had met with the President 12-15 times, several of them at the President’s home. The question is how ethical were such meetings of the head of the anti-corruption department (which should be fully independent) with the President.

Active PR of NABU

On November 13, 2017, the online edition Obozrevatel published the recordings of the "not for record" meeting of Artem Sitnik with journalists, in which the head of the NABU announced secret details and personal data of persons involved in high-profile cases. He thereby violated two articles of the Criminal Code at once. On the fact of disclosure, criminal proceedings were opened against Artem Sitnik.

Criminal cases conducted by NABU are often accompanied by information from "anonymous sources in the investigation". Thus, obviously, the bureau is putting pressure on suspects and witnesses, pushing them to cooperate. However, this damages the reputation and privacy of people who have not yet been accused by the court.

In this way, "sources in SAP", for example, reported about Vkitoria Berezkina. This information was disseminated in the media, but the suspect herself wrote on Facebook that she was not in Monaco, but in Vienna, not hiding, but on a medical examination, and that the NABU investigator and the judge had been informed about all her movements.

NABU detains persons illegally

Psychological pressure with the help of "leaks" is not the only "dirty trick" of anti-corruption.

According to lawyer Vitaly Kasko, recently the most common violation by law enforcement agencies is detention without prior permission of the court. "In most typical cases, NABU refers to documentary acts that are not committed immediately prior to detention. In such cases, prior authorization of the court is required. Ignoring this requirement is, in fact, arbitrary detention. There are violations of both the Constitution and Article 5 of the European Convention for the Protection of Human Rights, which protects the human right to freedom. And this is a direct way to the European Court, where lots of applications for arbitrary detention (without the permission of the court) have already been filed by the Ukrainian investigators, including the NABU detectives, " the lawyer said.

According to Kasko, the court in Strasbourg has already recognized this as a violation in the context of the previous Code of Criminal Procedure and Ukrainian law enforcement officers should have been aware of this.

NABU imposes exorbitant bails

Another systemic problem in the activities of the investigating authorities, including anti-corruption ones, according to Kasko, are petitions to the court for the use of bail in an amount deliberately exorbitant for a person.

"This is nothing but a hidden uncontested detention, which contradicts not only European standards, but also falls under the direct prohibition of Ukrainian criminal procedure law. Such violations will wait for their assessment at the European Court of Human rights, but they testify not in favor of the transparency of the work of the Ukrainian law enforcement system, which not only has not learned to work according to new standards, but in practice demonstrates disregard for human rights, "Kasko said.

If you become the object of pursuit, the system will not let you go

The statistics is illustrative: in 2016, local courts passed sentences against 86,744 people, 314 of whom were acquitted – it means only 0.36%. And in 2017, the percentage of acquittals amounted to 0.29%, writes Alexander Gorobets, a lawyer at the Business Security Practice Law Firm Juscutum.

A person who has fallen into the millstones of the Ukrainian judicial system with a probability of 99.64% is found guilty. For comparison: in the Netherlands there are 10% of excuses, in the UK - 20%, in the USA - 20% of those who collaborated with the investigation.

The repressive orientation of the Ukrainian law enforcement system, which has already been reformed, is also confirmed by the records of Kholodnitsky made by the NABU. On the tapes, you can hear him instructing his deputy to call the court’s board members and order not to consider the NABU detective’s petition, and also to conduct a search of one of the defendants in order to intimidate him. These recordings demonstrate well the legal culture of law enforcement officers in anti-corruption bodies, where the leadership underwent a special selection procedure with the support of international partners.

It is not surprising that Ukrainians negatively evaluate the results of anti-corruption bodies’ activity.

The data of the expert survey indicate the following: 75.8% of the surveyed experts rated the implemented anti-corruption measures as ineffective. 73.5% of experts note an increasing political influence on the judicial system of Ukraine (400 experts took part in the survey: lawyers, law enforcement officers, judges and human rights activists).

A public opinion poll conducted by the Razumkov Center and the Democratic Initiatives Foundation named after I. Kucheriv in June 2018 demonstrates a very low level of trust in anti-corruption bodies. NABU are trusted by 17.1% of surveyed persons; and the percentage of mistrust is 63.1%. Compared to 2017, the trust in the bureau has fallen by half. 13.5% of those surveyed persons trust SAP, 64.3% do not trust, 12.5% ​​trust the National Agency for the Prevention of Corruption (NAPC), and 63.2% do not trust NAPC.

In a society, the level of trust in anti-corruption bodies is falling, and such a sharp decrease is a natural result of public relations preference for real scrupulous work, political orders, and a selective approach to the choice of targets for persecution. But the worst thing is that the work methods of the reformed NABU and SAP often do not differ from the methods of the "old" law enforcement agencies, undermine the idea of ​​fighting corruption, destroy the faith of ordinary citizens in a society free of corruption.

By the editorial board of Ukrainian News 

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