Who manages the detectives in the new structure of NABU and what is wrong with it?

The activities and results of Ukrainian anti-corruption bodies from the beginning of their creation have been the subject of close attention of both society and international partners. They overcame the difficult path of creation, formation, pressure and huge challenges.

Despite all the difficulties, the National Anti-Corruption Bureau of Ukraine (NABU) remains a capable independent body, the results of which cannot be ignored, even though there are things to criticize. However, independence, which has been built up for a long time and with difficulty, can be easily lost.

Especially now – in the period of full-scale war – the National Anti-Corruption Bureau of Ukraine (NABU) and the Specialized Anti-Corruption Prosecutor's Office (SAPO) must demonstrate maximum determination and independence. The latest cases, such as those concerning the Security Service of Ukraine (SBU) scheme curator Artem Shil or ex-minister Mykola Solskyi, demonstrate that the National Anti-Corruption Bureau of Ukraine (NABU) and the Specialized Anti-Corruption Prosecutor's Office (SAPO) are able to "catch up" with corrupt pro-government elites. However, the leakage of information, the sources of which no one can calculate, or the too modest results of the fight against corruption in the defense sector after the full-scale Russian invasion, indicate that there are systemic problems. And now is the time to fix them.

Since the beginning of the year, the National Anti-Corruption Bureau of Ukraine (NABU) has been undergoing a large-scale reorganization. Its essence is that instead of a single main unit of detectives, four separate units appear at the National Anti-Corruption Bureau of Ukraine (NABU).

As a result of the reorganization, only the heads of three newly created separate units remained in management positions. The rest of the lower-ranking managers were formally dismissed from their management positions and remained in the status of detectives. The competition for these management positions was announced recently and is still ongoing.

The work of the four newly created units is coordinated by the first deputy director, who was previously responsible for the coordination of the Group of States against Corruption. The difference with the previous structure is that from now on, all newly created units of detectives are directly subordinated to the first deputy director without an intermediate link of a single manager (head of the Group of States against Corruption), who must be a detective and, according to the Criminal Procedure Code of Ukraine (CPCU), the head of the pretrial investigation body. Currently, neither the first deputy director of the National Anti-Corruption Bureau of Ukraine (NABU), nor the director himself, are either detectives or heads of the investigation, as required by the Criminal Procedure Code of Ukraine (CPCU). At the same time, the position of the head of the National Anti-Corruption Bureau of Ukraine (NABU) was not removed, but according to the new staffing schedule, this position does not belong to the management positions of newly formed divisions.

The reason for this reorganization is related to the recommendations of the independent technical assessment of the National Anti-Corruption Bureau of Ukraine (NABU), which was conducted by external experts in 2023. In accordance with the recommendations, the National Anti-Corruption Bureau of Ukraine (NABU) approved the plan, began reformatting the staff and announced competitions for new management positions.

At the same time, in practice, the format of subordinating detectives directly to the administrative leadership, which, according to the law, does not have investigative powers, as well as the conditions under which the leadership of the units is re-elected, can become a serious threat to the independence of the investigation at the National Anti-Corruption Bureau of Ukraine (NABU).

We at the Anti-Corruption Action Center (AntAC) have identified two main problems related to reorganization.

Problem 1. Detectives are now directly coordinated by the bureau's administrative leadership, which has no procedural authority to direct investigators.

Article 3 of the Criminal Procedure Code of Ukraine (CPCU) clearly defines who exactly has the authority to be the "head of the pretrial investigation body." That is, to manage detectives or investigators in a law enforcement agency and have other powers provided for by Article 39 of the Criminal Procedure Code of Ukraine (CPCU).

In the context of the National Anti-Corruption Bureau of Ukraine (NABU), this is "the head of the main detective unit, detective unit, detective department, internal control unit of the National Anti-Corruption Bureau of Ukraine (NABU), as well as deputies of the specified officials who act within the scope of their powers."

The director of the National Anti-Corruption Bureau of Ukraine (NABU) and his deputies are administrative managers by law. That is, they should not direct the course of the investigation. This should guarantee the independence of the investigative work.

Among the rights that the head of the pre-trial investigation body has (Article 39 of the Criminal Procedure Code of Ukraine (CPCU)) and that the administrative management does not have, is the determination of the head and the team of detectives in the case and the possibility of removing the investigator in case of his ineffectiveness. In addition, this manager has the right to familiarize himself with all the materials of the pre-trial investigation, the right to give instructions to the detective and approve investigative actions, to investigate himself, to eliminate violations.

That is, if instructions regarding specific investigative actions appear from the first deputy or even the director of the National Anti-Corruption Bureau of Ukraine (NABU), legally, detectives do not even have to carry them out. Moreover, by law, the administrative management should not know any details of the cases at all, because they should not have access to the case materials.

In order to receive information about the progress of the investigation, according to the law, the administrative management of the National Anti-Corruption Bureau of Ukraine (NABU) must receive written decisions from investigators or prosecutors every time.

Obviously, without these rights at the legal level, the deputy director of the National Anti-Corruption Bureau of Ukraine (NABU) cannot coordinate the work of the units responsible for the investigation.

And the absence of a single head of the investigation, who legally has the necessary information about all current cases of the National Anti-Corruption Bureau of Ukraine (NABU), can lead to at least ineffective duplication of cases, at most – to fatal consequences for them.

For example, in the National Anti-Corruption Bureau of Ukraine (NABU) system, one division is responsible for investigating schemes at Ukrzaliznytsia, and another is dealing with cases involving people's deputies. As a result, as in the case of Yaroslav Dubnevych, it may turn out that the people's deputy is involved in schemes at Ukrzaliznytsia. However, "neighboring" units investigate these facts of corruption in parallel, without knowing about each other, which wastes part of the bureau's resources.

In order to avoid duplication and increase the efficiency of the investigation, there should be a single center in the body. And this center should have the legal right to have all the information and give instructions to the investigators. Before the reorganization, such a center was quite legitimately the head of the Group of States against Corruption.

Another problem that arises due to the lack of the mentioned powers of the deputy director of the National Anti-Corruption Bureau of Ukraine (NABU) is the lack of legal responsibility of the person for the results of the work of the units subordinate to him. After all, when there are no clearly recorded procedural powers, problems also arise with responsibility.

Conventionally speaking, when there was a leak of information in the case, the management of the bureau, which was aware of the details in an extra-procedural way, is not responsible, because it does not have any procedural status in the case.

And such leaks have already occurred in the practice of the National Anti-Corruption Bureau of Ukraine (NABU). For the sake of fairness, it should be noted that the sources may also be in the Specialized Anti-Corruption Prosecutor's Office (SAPO) and the High Anti-Corruption Court of Ukraine (HACC), but it is the bureau that accumulates the most information. For example, let's recall the case when the personal records of the ex-head of the Supreme Court of Ukraine Kniaziev, detained for bribery, got into the network. It is about the sheet on which Kniaziev marked the names of candidates for the Higher Qualification Commission of Judges of Ukraine (HQCJU), with whom the High Council of Justice was to conduct interviews with the participation of Kniaziev. It is noteworthy that among the candidates was an employee of the National Anti-Corruption Bureau of Ukraine (NABU), Ruslan Melnyk, who successfully passed the selection process and was appointed a member of the Higher Qualification Commission of Judges of Ukraine (HQCJU). Kniaziev's records were allegedly found during a search of his office. The Specialized Anti-Corruption Prosecutor's Office (SAPO) reported the opening of proceedings on the fact of illegal information leakage, which should be investigated by the Internal Control Department of the National Anti-Corruption Bureau of Ukraine (NABU). However, there are no results of the investigation.

Another example is when the Cabinet of Ministers of Ukraine dismissed the leadership of the State Special Communications Service of Ukraine clearly a few hours before they were handed over NABU's suspicions of embezzlement of over 62 million UAH. It is not known how the government found out about the service of suspicion in advance and made the decision to release on the same day.

The updated structure will only contribute to the fact that all key information will converge precisely in the administrative leadership. Of course, it is possible to appeal to the fact that detectives should equally remain independent. That is, they should not report the details of cases to the top management and listen to verbal instructions from there. However, in practice, such a scenario is unrealistic for many reasons.

Firstly, among the powers of the administrative leadership are the issues of appointments and dismissals. It is the first deputy director who heads the competition commission, on which his career growth depends, and the disciplinary commission, which is responsible for punishment in case of violations.

Secondly, in the field of responsibility of the first deputy is the distribution of resources. For example, the resource of operational and technical management, without the involvement of which it is impossible to organize any operation that requires listening, monitoring. And therefore, if the manager sets as a condition for the implementation of these measures his own awareness of the details of the case, then the choice is small: either provide the details in exchange for resources, or you will have nothing.

Problem 2. Concentration of influence on a position that is open-ended and non-competitive.

The positions of deputy directors of the National Anti-Corruption Bureau of Ukraine (NABU) are the only ones for which there is no open competitive selection. In addition, the law does not limit the term of office of these deputies. At the same time, all the National Anti-Corruption Bureau of Ukraine (NABU) detectives are selected through open competitions. The position of the head of the General Administrative Service was also competitive.

Currently, the director of the National Anti-Corruption Bureau of Ukraine (NABU) has four deputies. However, it seems that after the final subordination of the entire investigation to the first deputy director (under whom also remains the office of criminal analysis and financial investigations), he will have all the main levers of influence in the bureau. After all, as mentioned above, the first deputy director of the National Anti-Corruption Bureau of Ukraine (NABU) already heads the competition commission responsible for the selection of detectives and the disciplinary commission, which decides on the application of disciplinary sanctions against the National Anti-Corruption Bureau of Ukraine (NABU) employees.

The combination of all these functions in the same hands poses threats to the body, regardless of the name and identity of the deputy. After all, together with the direct influence on the investigation, it makes it possible to at least build a system of loyalty among detectives and influence their decisions.

By the way, in the already mentioned report on the assessment of the National Anti-Corruption Bureau of Ukraine (NABU), independent experts directly express their concern about the fact that appointments to management positions in the bureau were made based on possible personal loyalty, and not on the professional achievements of specialists.

High workloads, understaffing, bureaucracy, inefficient processes, and war-related stress are testing the resilience of the National Anti-Corruption Bureau of Ukraine (NABU) personnel and can affect morale if action is not taken. The morale of the National Anti-Corruption Bureau of Ukraine (NABU) personnel remains strong, but there are signs of gradual burnout and deterioration. The National Anti-Corruption Bureau of Ukraine (NABU) has always had highly motivated employees with a clear understanding of NABU's mission. The National Anti-Corruption Bureau of Ukraine (NABU) hires staff through open competitive selection, but there are concerns that appointments to senior positions within the National Anti-Corruption Bureau of Ukraine (NABU) are not based on the personal qualities of candidates and have encouraged personal loyalty rather than performance and a desire to improve. Too many levels.

The first deputy chaired the competition commission, which chose the heads of detectives throughout all the years of the bureau's operation. Now, when the selection for the leadership positions of four investigative units is taking place, the administrative management of the bureau has a chance to appoint only loyal people to the leadership positions.

How to avoid undermining the independence of detectives and the effectiveness of the bureau?

The solution to this problem globally lies in the plane of the law.

Firstly, the coordination of detectives should be carried out by a person who has such authority and is legally responsible for his actions in accordance with the Criminal Procedure Code of Ukraine (CPCU). That is, either the director or his first deputy must be included in the list of officials who head the investigation body (amendments to Article 3 of the Criminal Procedure Code of Ukraine (CPCU)).

Secondly, if the deputy director becomes the coordinator of the investigation, it is necessary to choose such a deputy exclusively through an open competition. For absolute trust in the process, it should not be just an internal competition of the bureau, but a competition similar to the selection of the director with the involvement of international experts. An alternative option – the head of the investigation becomes the director of the National Anti-Corruption Bureau of Ukraine (NABU) after his position is entered in the relevant article of the Criminal Procedure Code of Ukraine (CPCU).

These decisions obviously require changes to the law, which will not be easy to implement through today's semi-functional Verkhovna Rada of Ukraine.

However, the operation of the investigation under conditions of informal influence, verbal instructions and illegitimate coordination can lead to fatal changes that scale after the increase in the number of bureaus. We have no moral right to risk the institutional and investigative achievements of a body called to play one of the key roles in the fight against top corruption in the conditions of war and hybrid threats from Russia.

The National Anti-Corruption Bureau of Ukraine (NABU) should remain an example of a body with real institutional independence, able to show the results expected by society and international partners of Ukraine. Postponing the solution of this problem for a long time in order to solve it in the distant future is strategically dangerous for the state.