"Thanks to Andrii Yermak!" instead of criminal justice reform

The other day, a business meeting was held with Prosecutor General Andrii Kostin and representatives of the Prosecutor General's Office. Its results: public announcement of the achievement of closing 20% of criminal economic proceedings and public thanks to Andrii Yermak for support and justice.

The authors of these messages are successful and well-known businessmen, which increases the level of cringe in this story several times. In fact, the systematic nature of changes in criminal justice was not visible and is still not observed. And synchronized words of thanks do not affect their creation.

Three months ago, after a series of scandalous searches and raids on the entire list of companies, as well as after the detention of well-known businessmen, on the basis of the Office of the President of Ukraine, the Council for Business Support in Martial Law was established. This structure now includes: the founder of Ajax Systems Oleksandr Konotopskyi, the co-founder of Monobank Oleh Horohovskyi, the head of the Federation of Employers of Ukraine Dmytro Oliinyk and others.

In the end, the initiative may be right, but it does not, in fact, solve the problem in the context of protecting businesses from the encroachments of unscrupulous investigators and prosecutors. Then I was immediately critical of this publicity campaign by politicians on Bankova Street, and now I will try to explain why.

The manual mode of operation of the Prosecutor General's Office and all pretrial investigation bodies (and, let me remind you, there are as many as five of them: the National Police of Ukraine, the State Bureau of Investigation (SBI), the Security Service of Ukraine (SBU), the Bureau of Economic Security of Ukraine (BESU), and the National Anti-Corruption Bureau of Ukraine (NABU) is a negative trend that has been going on for decades. Of course, this should not be the case, and the chronic manual mode in which they work must be a thing of the past. Does the closing of 20% of criminal proceedings at least somehow prove this?

It is all the more evil to rejoice in it and be grateful for it. I have no suspicions that the businessmen who are members of the above-mentioned Council on Business Support at the Office of the President of Ukraine do not understand the basics. And therefore, they consciously compromise with conscience, asserting pressure on business as the norm and other key problems in the criminal justice system.

First, Oleksandr Konotopskyi and his colleagues from the aforementioned Council solemnly announced that 20% of criminal proceedings related to the economic sphere were closed. Unfortunately, only a few proceedings related to the work of the Bureau of Economic Security of Ukraine (BESU) as a key law enforcement body, through which they can and, I am sure, will put pressure on business.

And the closing of proceedings, literally any, is not the end, because later it can be renewed, for example, in view of newly discovered circumstances. I understand that businessmen do not know this, and they were simply sent theses from Bankova Street, which were supposed to be published on social networks.

Secondly, it was stated that "for three months, temporary accesses to things and documents decreased by 42%, searches decreased by 46%, and requests to seize property decreased by 56%." Again, does this apply to the total number of proceedings or only to those that come from the economic sphere? I'm sure businessmen don't know this. And the political leaders in the office of the President of Ukraine also know little about this. Everyone, except Oleh Tatarov, because he knows very well that he has not lost control over the bodies of the pre-trial investigation. Voluntarism (read – manual mode) has not gone anywhere. Sometimes it seems that it is not the prosecutor (that is, the Prosecutor General), but the investigator (that is, Tatarov) who decides who should "run" and where.

Thirdly, Prosecutor General Andrii Kostin signed the updated Standards of Prosecutors' Activity. This is an important thing, for sure. This is exactly what we proposed in 2019, when we created the foundations for a full-fledged reform of the prosecutor's office system of Ukraine. And, according to the idea at the time, an independent disciplinary committee would have to monitor compliance with the standards. And besides all this, of course, there should be an independent general prosecutor. It is this – an apolitical and independent prosecutor general – that every businessman should demand in the office of the President of Ukraine.

Then the idea of complying with the Standards of Prosecutors' Activity would have a real effect on the elimination of pressure on business as a phenomenon. In this case, there would be no need to create Councils for the support of entrepreneurship or something similar.

In addition, it is necessary to stop abusing the concept of stopping the appearance of fighters of internal forces or other law enforcement agencies who usually appear to search, arrest people or property and confiscate. It's not that it's irrelevant, it's just a fantasy of politicians who spread this concept in their own interests in order to pass certain legislative changes. The reform has been implemented for too long, and it should have moved from figurative definitions to concrete proposals a long time ago. But the specifics are currently not settled.

 

Fourth, creating an online criminal justice dashboard, while a good idea, is meaningless. What do you need this dashboard for? Comparing business intelligence from the private sector to criminal investigations by the criminal justice system is like comparing a SpaceX rocket to the work of The United States Department of Justice. Some are public and some are private. It is like comparing two different objects round and green. Investigations in general cannot be "completely transparent", because there is secrecy of the pre-trial investigation.

To change concepts in this case is a crime. If it is only about displaying the statistics of searches, arrests, open and closed criminal proceedings, then say so. Don't try to do the impossible, it's not funny. Such statements indicate either a complete misunderstanding of how criminal justice works, or a deliberate distortion of the facts.

What's more, "broad analytics" will by no means make it possible to understand the systemic nature of the pressure on business. Because prosecutors, like investigators, generally know the state of the system according to this parameter. And to some, I write without any complaints, it would be desirable to pay more attention to criminal justice, and not to self-representation in Western democracies. This would be appropriate, because it is not a very good idea to transfer all the work and responsibility to the deputies.

Fifthly, one of the businessmen who are members of the Council for the Support of Entrepreneurship also noted that the Parliament will soon adopt changes to the Criminal Procedure Code and the Law on the Bureau of Economic Security of Ukraine (BESU). So, in the first reading, the amendments to the law on the Bureau of Economic Security of Ukraine (BESU) are regulations that belong to Oleh Tatarov. It is worth noting that they have nothing to do with the necessary processes that will really enable a full and independent restart of the state body. Regarding the changes to the Criminal Procedure Code of Ukraine, maybe we will start by finally cleaning the code from the remnants of the "Lozovyi amendments"?

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What does the reform really need? To begin with, we need to stop faking change, instead adopt a normal concept of criminal justice reform and implement it systemically, not in isolation. To do this, it is necessary to stop supervising prosecutors and investigators in manual mode and to approach the processes comprehensively and apolitically.

We have been running in circles for another dozen years, while Ukraine needs other principles and approaches. Only when the politicization of investigations, actualization in accordance with the agenda of the prosecution of individual companies and businessmen will stop, investigators and prosecutors will become independent, only then will the much-desired thing finally happen, namely, law enforcement and justice will stop putting pressure on business. And the rest are just dreams, fantasies, manipulations and constant promises of a full-fledged criminal justice reform.