Does the Ukrainian Constitutional Court’s National Anti-Corruption Bureau decision mark the end of anti-corruption era?

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Kateryna Gupalo
Arzinger Law Firm, Kyiv
kateryna.gupalo@arzinger.ua

Yurii Kleban
Arzinger Law Firm, Kyiv
Yurii.Kleban@arzinger.ua

Ukraine has taken a number of effective measures to combat corruption over the last few years. Such measures are due to both the high level of corruption in the country, and requirements set by the international community and organisations as a prerequisite for further European integration.

One of such steps was the establishment of a single independent anti-corruption law enforcement agency, the National Anti-Corruption Bureau of Ukraine (NABU). The NABU was launched in 2015 on the basis of the Law of Ukraine, ‘On the National Anti-Corruption Bureau of Ukraine’, adopted by the Ukrainian Parliament. Its aim is to combat corruption offences committed by senior government officials as well as at taking other relevant action in the fight against corruption.

However, the prospects for activities of both the NABU and other anti-corruption institutions in Ukraine are now in question.

In August and September 2020, Ukraine’s Constitutional Court (CCU) which is the country’s highest constitutional jurisdiction authority, passed two decisions concerning NABU activities. These were based on a petition filed by a number of Ukrainian Members of Parliament (MPs).

Decision on the constitutionality of NABU director’s appointment

In particular, the Decision of 28 August 2020 found the Decree of the President of Ukraine ‘On Appointing Artem Sytnyk Director of the National Anti-Corruption Bureau’, issued back in 2015, to be inconsistent with the Constitution of Ukraine. The CCU’s reasoning was that the list of the President’s powers, including to appoint officials of agencies defined by the Constitution of Ukraine, is exhaustive. Since the NABU director is not listed among the relevant officials, the court concluded that the President exceeded his constitutional powers, despite the fact that such powers were granted to him by the Law of Ukraine, ‘On the National Anti-Corruption Bureau of Ukraine’. Furthermore, the CCU also concluded that NABU is an executive body at its core, and the highest body in the system of executive authorities is the Cabinet of Ministers of Ukraine, whose powers include, inter alia, the appointment and dismissal of heads of central executive authorities that are not part of the Cabinet of Ministers of Ukraine.

While the CCU was hearing the case, some experts expressed concern that if the Decree were ruled unconstitutional, the status and legality of all criminal proceedings investigated by NABU would be affected.

However, such fears did not materialise, as a separate paragraph of the decision states that it does not apply to legal relations arising from the performance of official duties by a person appointed by the Decree of the President of Ukraine, ‘On Appointing A Sytnyk Director of the National Anti-Corruption Bureau of Ukraine’.^[1] Consequently, all the work done, including the investigations in criminal proceedings during the relevant period, may not be considered illegal.

Decision on the constitutionality of certain provisions of the Law of Ukraine ‘On the National Anti-Corruption Bureau of Ukraine’

According to the second decision, adopted on 16 September 2020, a number of provisions of the Law of Ukraine, ‘On the National Anti-Corruption Bureau of Ukraine’, have been declared unconstitutional. Specifically, it refers to the powers of the President of Ukraine to form and appoint senior NABU officials. The Court ruled as unconstitutional the provisions of the Law regulating the powers of the President of Ukraine regarding the:

• formation of the NABU;
• appointment and dismissal of NABU’s director;
• designation of three members of NABU’s director contest panel;
• designation of one member of the external control panel; and
• approval of the Regulations on the Public Control Council and on the procedure for its formation.

In their constitutional submissions the applicants alleged that the above provisions of the Law of Ukraine, ‘On the National Anti-Corruption Bureau of Ukraine’, imply NABU’s indirect subordination to the President of Ukraine and pose a threat to the independence of the law enforcement agency.

As with the previous decision, the CCU notes that the NABU is an executive authority at its core. Vesting the President of Ukraine with the authority to establish it, appoint its director, and resolve other issues relating to its functioning would allow for interference with the competence of the Cabinet of Ministers of Ukraine.^[2]

However, the Court postponed the invalidation of the provisions declared unconstitutional by the decision for three months, so that the Parliament of Ukraine can harmonise the provisions of relevant legislation.

Implications of the adopted decisions

What are the implications for the functioning of both NABU and anti-corruption infrastructure in general?

The basis of these decisions is the need to transfer the authority to form and appoint senior NABU officials to the Cabinet of Ministers of Ukraine. The possible consequence is that Ukraine’s highest anti-corruption law enforcement agency loses its independence and effectiveness in its fight against corruption in the highest echelons of power. In this regard, one of the CCU judges has aptly made a point in his dissenting opinion on the issues considered:

‘The manning of the Cabinet of Ministers of Ukraine is the result and materialisation of the political process in the country, and its personal composition is the product of changing political will of the MPs’ majority. Unlike the head of State, who maintains an institutional distance from the current policy, the composition of the Government of Ukraine is dependent on the parliamentary majority. This model of relations is implied by the constitutional form of government. Therefore, making the anti-corruption bodies dependent on political elites, who personally fill the “Parliamentary Majority – Government” system cannot, mildly speaking, contribute to the effectiveness of special anti-corruption agencies’.^[3]

Given the draft law, which proposes to empower the Parliament of Ukraine to make decisions on dismissing the NABU’s director if proposed by one third of MPs of the constitutional composition of the Ukrainian Parliament,^[4] which is currently pending in the Parliament, there are strong concerns about the further development, effective functioning and independence of the institutions designed to combat corruption in Ukraine.

Another aspect of these decisions which is raising concern, is the possibility that NABU ceases to exist as such. As noted above, one of the provisions of the Law of Ukraine, ‘On the National Anti-Corruption Bureau’, which has been declared unconstitutional, is the one authorising the President to establish this agency. If the Parliament of Ukraine does not adopt the relevant amendments to the legislation to bring it in line with the decisions of the Constitutional Court within three months, NABU may cease to exist due to the fact that the rule on NABU’s establishment by the President is declared unconstitutional. As matters stand, no relevant draft laws have been submitted to parliament. Yet there is some time left before the deadline, so any such forecasts could be premature.

However, it should be noted that the Constitutional Court is considering a submission for declaring the Law of Ukraine, ‘On the Supreme Anti-Corruption Court of Ukraine’, unconstitutional. This is the only agency in the anti-corruption infrastructure of Ukraine authorised to consider criminal proceedings investigated by NABU. Therefore, the closure of any higher anti-corruption agency can nullify all the reforms that have been carried out in recent years.

The situation can only be assessed after the expiry of the three-month legislative harmonisation period set by the Constitutional Court.

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