Effectiveness of the fight against corruption in Ukraine depends directly on the clear distribution of powers of the bodies that carry out this struggle. Legislative issues are resolved, but in practice the fight against corruption in Ukraine is carried out by everyone: the police, the Security Service (SBU), the Prosecutor General’s Office, the National Anti-Corruption Bureau (NABU) and the Specialized Anti-Corruption Prosecutor’s Office (SAP).
As a result, for example, SBU initiate a pre-trial investigation and when it comes to court, the latter finds that the investigative actions were unlawful, since they were carried out by the bodies unauthorised to investigate such crimes. The case falls apart. And the conflict arises since there are no legal mechanisms for transferring the case to the competent authorities.
Particular attention should be given to the fact that most law enforcement chiefs support such ‘eagerness’ in every way. Both Prosecutor General and Minister for Internal Affairs have repeatedly stated that such ‘competition’ among law enforcement agencies will increase effectiveness of the fight against corruption.
Distribution of the authority under the law
Article 216 of the Criminal Procedural Code of Ukraine clearly defines which crimes are entitled to pre-trial investigation by the pre-trial investigative authorities.
However, since investigations of most offenses won’t glorify enough the valiant police officers, all law enforcement agencies are trying to promote themselves by investigating corruption and economic crimes.
Such sentiments found support among legislators, as on 3 November 2016 Verkhovna Rada registered another draft bill (№ 5212), giving the Attorney General a right to change competence over the cases under exclusive jurisdiction of the National Anti-Corruption Bureau of Ukraine.
It appears that only the NABU and the Special Anti-Corruption Prosecutor’s Office do not share the above view.
Thus, on 25 August 2016 the SAP Head Nazar Holodnytskyy requested the High Specialized Court of Ukraine for Civil and Criminal Cases to clarify the issue of the admissibility of evidence obtained in violation of the rules of jurisdiction.
In its response of 13 September 2016 the Court explained that in case of breach of the jurisdiction rules the requirement of legality of actions of the investigator and prosecutor, guaranteed under paragraph 1 of Article 9 of the CPC, is violated. As a result, the evidence collected in violation of the jurisdiction rules is inadmissible pursuant to paragraph 2 of part 3 of Article 87 of the CPC, as obtained by the investigator and / or prosecutor implementing powers not envisaged by the CPC.
Section 4 of the above Article provides that such evidence shall be inadmissible at any stage of the proceedings.
What does this mean in practice, if the courts generally follow the position of the VSSU.
Simulation of the situation
The National Police / SBU / GPU discovered the fact of embezzlement of state property in the amount proportional to the annual budget of the regional centre. The investigation was conducted and all necessary evidence was collected; the persons who committed the crime were found and served with notification, and the indictment was directed to court.
If the court adheres to the above VSSU position, it will return the indictment to the prosecutor, as it was signed and sent by unauthorised person, as well as notification of suspicion.
In the best case scenario for the prosecutor, the court will accept the indictment and declare all evidence in the case inadmissible.
As a result, a person gets compensation for unlawful prosecution and the police / SBU / GPU claim that the Ukrainian courts are corrupt.
It also often happens that the police/SBU/GPU start pre-trial investigation, only for NABU or SAP after some time to decide that the case belongs under the NABU jurisdiction and it is reassigned to NABU by the SAP decision.
The case is being handed over to the NABU, however it still won’t be successful because the head of the SAP takes decision to appoint another pre-trial investigative authority to conduct the pre-trial investigation. At the same time, this is done on the basis of part 5 of Article 216 of the CPC .
However, in this case the substitution of notions arises, since Article 36 of the CPC clearly delineates the powers of the prosecutor as:
- to entrust the pre-trial investigation authority with the conduct of pre-trial investigation (paragraph 3 of paragraph 2 of article 36)
- to entrust the commission of a pre-trial investigation of a criminal offense to another body of pre-trial investigation (part 5 of Article 36).
Thus, after registering the information in the Unified Register of Pre-trial investigations the investigator, pursuant to paragraph 21 of the Article 6 of the CPC, informs the prosecutor about the initiation of pre-trial investigation. It is at that stage that the prosecutor is entitled to assign the pre-trial investigation to certain investigative authority.
Therefore, the SAP Head can also determine the jurisdiction of NABU in any case (based on part 5 of Article 216 of the CPC).
However, from the moment the prosecutor assigned the investigation to the police/NABU/GPO, the only way to reassign it to another investigative authority is to change the jurisdiction under paragraph 5 of Article 36 of the CPC.
Meanwhile, paragraph 5 of Article 36 of the CPC does not authorize the Head of the SAP to change the jurisdiction in favor of NABU. The only mention of NABU in this provision prohibits reassignment to other bodies of pre-trial investigation under jurisdiction of NABU.
According to the provisions of Article 36 § 5 of the CPC, the Prosecutor General and his deputies can entrust commission of a pre-trial investigation of a criminal offense to another invstigative authority only if the investigation is ineffective.
In theory, the Head of the SAP can change the jurisdiction of any case, since he is a Deputy General Prosecutor entitled to such right.
However, in practice, this appears to be virtually impossible, since the CPC provides such right only under the condition of ineffectiveness of the investigation.
In order to establish the ineffectiveness of the investigation, it is necessary to analyse the criminal proceedings files, and since the Head of the SAP is not a prosecutor in this criminal proceeding, the materials of such proceedings may not be provided to him.
Even if the SAP prosecutors can prove the ineffectiveness of the investigation, it should be remembered that the Attorney General quashes the decision of the Head of SAP if he considers it unlawful.
In addition, according to paragraph 5 of Article 218 of the CPC, the Attorney General resolves a dispute regarding the jurisdiction of the NABU.
Therefore, it seems almost unrealistic that the Attorney General will allow the Head of the SAP to draw conclusions about the ineffectiveness of the investigation, especially if this is an investigation carried out by the GPO.
If the case is handed over to NABU in breach of the CPC procedure, then the VSSU’s conclusion regarding the violation of the rules of jurisdiction should apply to both NABU and SAP. After all, they also violate the requirement of lawfulness, mentioned by the VSSU; as a result, all of their actions will be deemed unlawful, and evidence – inadmissible.
Therefore, we have a situation where, in case of violation of the jurisdiction procedures, the investigation will be void, and there are no lawful methods of transferring the case to relevant authority.
In my professional opinion, it is indisputable that SAP should have the authority to transfer the cases to NABU, but this issue should be properly regulated at the legislative level.