Ukraine: ultimate Council restores independency of anti-corruption bodies

On 31 July, the ultimate Council of Ukraine adopted (with 331 votes “in favour” and no “against”) a presidential bill withdrawing most of the legal changes introduced on 22 July which made anti-corruption bodies dependent on the National Anti-corruption Office of Ukraine (NABU) and the peculiar Anti-corruption Prosecutor's Office (SAP) — from the lawyer General (PG); see Ukraine: Elimination of the independency of anti-corruption services against affront at the top of power). On the same day, the fresh legal act was signed by Volodymyr Zelenski.

Law No 13533 adopted provides that the PG will be able to take the NABU case and transfer it to another authority only in the event of ‘objective circumstances preventing the competent authority from functioning during the course of the martial law or conducting its investigation’ alternatively than at its own discretion. A provision was besides amended to facilitate searches without a court decision. The fresh law leaves the controversial option of selecting prosecutors outside the competition and firing them in the event of reorganization or liquidation of a D.A. department – but this does not apply to anti-corruption cases. An article was besides added that states that NABU officers will be subjected to a mandatory polygraph.

The adoption of the Act is the consequence of social force in the form of anti-government protests (first since the beginning of the war) in the largest cities of Ukraine, which have lasted since 22 July. The European Union has besides reacted: in the event of controversial provisions being left in force, payments from the ERA strategy (the debt facility to Kiev, secured by interest generated by frozen Russian assets, and from the European Investment Bank) would be at risk. The German ‘Frankfurter Allgemeine Zeitung’ besides reported that the EU threatened to suspend any financial assistance to Kiev, including the Ukraine Facility. The same would apply to funds from the European Bank for Reconstruction and Development. In turn, the global Monetary Fund signaled the hazard of halting support worth $4.8 billion.

The swift passing of the bill shows the fear of the authorities of social reaction and of underestimating the possible consequence of the West. Despite the reversal of harmful changes to the fight against corruption, the full issue will have a negative impact on Zelenski's image abroad, which may have an impact on getting further aid from Western institutions.

Comment

• In practice, the Act restores the independency of Ukrainian anti-corruption institutions. Most of the criticized changes were either repealed or greatly mitigated. The fresh legal act was consulted by NABU and SAP staff. The PG will only be able to mention the substance to another body under very hard conditions (only if the authority is incapable to carry out its duties due to war-related obstacles, specified as paralysis of the law enforcement authority, which even during the course of martial law is simply a hard condition to fulfil). The court's compulsory approval to conduct searches has besides been restored (except where this is essential due to the hazard of demolition of evidence or where wellness or life protection requires this). The introduction of polygraph studies is an effort to keep allegations of the existing threat of penetration of these authorities by the Russian services and to justify the action taken by the authorities (including initiatives to adopt erstwhile regulations). The problem with the Act of 22 July is inactive the anticipation to elect prosecutors outside the competition, which raises apparent doubts about their independency and remains incompatible with the case law of the Ukrainian Constitutional Court.
• The authorities underestimated the social and global responses. The Act of 22 July sparked Ukraine's biggest interior crisis since the beginning of a full-scale armed confrontation. Even under martial law, the population there showed fast and massive mobilization, which amazed decision-makers. The outrage was most likely due to concerns about halting the process of European integration, which, according to most Ukrainians, should be the main nonsubjective of the authorities. Protests most likely besides dared western Ukrainian partners. ReductionEU financial support and the threat of detention of subsequent payments undoubtedly affected the pace of the rulings. They besides accelerated past reforms, specified as the signing by Zelenski (a fewer weeks after the deadline laid down in the Constitution) of the ARMA improvement Act (the asset search and management agency acquired in connection with the crime). The EU thus reminded Kiev that financial assistance is dependent on concrete reforms and that the EU has tools to enforce its commitments. Brussels has besides begun to exert force on the appointment of the Head of the Office for economical Security, which she has so far treated leniently. The force of society and global institutions could have caused the bill to support all political forces in Ukraine.
• The conflict over the independency of NABU and SAP undermines Zelenski's credibility abroad. So far, in Brussels, due to the ongoing war, it has been attempted not to criticize the beginning of the president of Ukraine. An effort to take over anti-corruption authorities may lead to a stricter rhetoric towards Kiev on the improvement process, as well as a more thorough monitoring of global commitments and a more assertive attitude towards future financial support. Ukraine's opponents have obtained an argument for being a corrupt and non-reformist country and its backing providers may have concerns about the reliable usage of loans or grants. This may make it hard for European decision-makers to convince voters of the appropriateness of continuing or expanding the assistance provided to Kiev.