NABU is alive and kicking and working well, - Giovanni Kessler

Author : Elina Beketova

Respondent : Giovanni Kessler

Italian prosecutor and the Director-General of the European Anti-Fraud Office Giovanni Kessler spoke to 112 Ukraine's TV channel Elina Beketova about Ukraine's fight on corruption

09:30, 11 September 2017

112 Agency

EU advisors shall assist fighting corruption in Ukraine from now on. An an Italian prosecutor and the Director-General of the European Anti-Fraud Office Giovanni Kessler is one of them. Together with Carlos Castresana, a Spanish prosecutor who jailed the Guatemalan president, and Daniel Telesclaf, the head of financial intelligence of Liechtenstein, they will cooperate with Ukraine’s anti-corrruption committee of the Verkhovna Rada.

Elina Beketova, the host of the 112 Ukraine TV channel spoke with Giovanni Kessler in frameworks of her series of interviews International Insight. Mr. Kessler told what to expect of the NABU audit and whether Ukraine needs the anti-corruption court.

The series of interviews 112 International Insight introduces the viewpoint of influential Western experts, who are the source of a new, fresh point of view, different from the one of the Ukrainian experts, who usually comment on the current situation.

What is the purpose of your visit to Ukraine? Since your last time here, in Ukraine, what changes do you see in the fight against corruption?

- I'm here together with the team of international experts in anticorruption, which have been put together by the European Union anticorruption initiative in Ukraine, which is a new program to support Ukrainian efforts in the fight against corruption. We have just started some meetings and task of this board of experts is to support with professional advice, in particular anticorruption committee of Rada in their work, legislative work on the anticorruption and also supervision work of the Rada.

Related: Poroshenko stands for international audit of anti-corruption policy of Ukraine

Do they need any advice?

- I think, every reasonable person in the world sometimes needs advice. Especially when you are in the middle of let’s say illness like corruption in Ukraine.

Do you see any changes in this fight? And what are them?

- There are changes and there are progresses in the fight against corruption. May be there are not that many changes in the corruption itself which remains widespread as far as we see and systematic in Ukraine. And this is not surprising, since the situation of corruption has been for a long time. The illness is very serious and requires strong reaction which doesn’t take few days. Much has been done over these years. Much has been done after Euromaidan. And this we have to recognize.

Related: Energy sector remains most corrupted in Ukraine’s economy, - Anti-Corruption Bureau

What are the main achievements?

- The main achievements I would say is the setting up of the independent investigative body which is NABU, which is now alive and kicking. And it's working, and its working well. I think, beyond even the results, the investigative results, I think it’s a very important signal - that can be independent investigative bodies. Which means that anybody at every level who commit corruption/crime can be investigated, so discovered, detected, and investigated and prosecuted. I think, in the old times it was not like this. If you belong to the right circles, to the power elite, you were exempted from the risk of being discovered, investigated, prosecuted and held responsible for it. That mere fact that an investigative body and independent body is able to investigate objectively exists, just this mere fact has enormous significance. And this exists. This is the main progress.

You were in the selection committee of the director of NABU. And this year we are expecting the first audit of this bureau. How do you evaluate the work of it? What are the main achievements? May be you can tell about the most significant cases they have already started?

- I'm not the auditor of NABU and I'm not carrying out an assessment of NABU. This might be possible done by the auditors, which Ukrainian institutions are about to appoint. This issue of an audit of NABU - it seems to be really exaggerated and may be a bit misleading. NABU has been put in place and it's running since not long, not much time. To do a proper audit, a proper assessment - it’s not a priority. It is not normal that it is done so early. In order to do a proper audit on anything you have to wait for this anything to be a bit established and then you can see. If you take a picture of what has happened till now, it's a bit too early, and it doesn't give you the right idea of what is going on and what is needed.

Related: Four factors of US interest for struggle against corruption in Ukraine

So, this annual audit won't show the real results of NABU?

- Not today. Today is too early. In my view. But if one wants to do an audit - let’s do an audit, which again doesn't seem to be appropriate at this time. Or at least a priority. I think, the priority are others – is to work. What I see - and this is a bit of concern - this audit on NABU has been introduced in order to do an audit, an assessment, but actually - in order to introduce an additional reason in order to dismiss the head of the NABU at the end of the audit. So, the legislative amendment which introduced this audit, has also said that the head of NABU can be dismissed by the parliament as a result of this audit. This seems to me really exaggerated. And may be it shows the real intentions of the audit - not just to make an assessment for which there is no such a need or such an urgency,  but to create a reason for dismissal of the head of the NABU.

Do you think Artem Sytnik will stay on his place?

- I think so.. I don’t see why he should be changed. Actually, it's not the personal issue. But the point is to have an independent investigative body, independent judicial and prosecution. But one is independent, and I understand it's a new concept, might look like a revolutionary concept, but in order to be independent, you have to be chosen for objective reasons not for political reasons. And not to have links with any political party.

So, was Artem Sytnik chosen for objective reasons?

- Yes, in fact. But this is not enough. In order to have independent bodies, once they have been independently appointed, and they are independent. The independence of this body has to be preserved, guaranteed that your career, your post can not be endangered any moment by political choices, by political decisions. The example of my present position - the director general of OLAF, I'm the head of the investigators, in charge of investigating also on the members, on the staff  of the EU institutions, and I have to be independent. So, there are the particular procedure to appoint me and to ensure that the appointment preserves my independence. But also my term of service is fixed by law, it is 7 years, and it is not renewable. And I cannot be dismissed unless I commit very serious crimes. Not that there a vote in the parliament and I'm dismissed. Or else - my professional existence depends on a political choice of a political body - but then I cannot be independent. If I know that if I do something, which is not liked by the majority of the parliament, I can be dismissed the day after.

So, is this the situation with NABU, do you think?

- Risks to be. It's not yet because this audit hasn't been started, but if you say there is an audit, conducted by 3 members appointed by the 3 institutions, by 3 political institutions actually, and the result of the audit - you can be dismissed, it's in the law. So, the initial law of setting up the NABU, was I think, well written, well done, and it provided not only the independent appointment, but also independent working, work of the NABU, but now this law has been changed.

Related: Anti-corruption organization to adress Prosecution to stop lawlessness at Odesa customs

Just to clear out - you think, there should be the audit, but should there be marked that the director of NABU is appointed for 6-7 years and there shouldn’t be the audit. What is the working recipe for Ukraine?

- The problem is not the audit of NABU, I don’t mind if someone wants to do an audit, let do an audit, but the outcome of the audit cannot not be the dismissal. I'm also audited - not me but my organisation is audited by the European Court of auditors, by professional auditors, not by political auditors. It is audited by the internal audit service of the european commission. So, its not a problem that investigative bodies are audited but there is nowhere written that the result of an audit one can be dismissed. So that’s why I am a bit worried that these legislative change that has been recently introduced, in order to do an audit of NABU lays down the possibility for the head of NABU - to be dismissed. And this legislation has been put in place as soon as NABU has reached some conclusions in its investigations. Conclusions that might be painful for the people in investigation that might be powerful people.

So the answer is – audit - yes, the dismissal of the director as a conclusion - no.

- Right.

Mr. Kessler, we have a great discussion now - Does Ukraine need an anticorruption court or may it be just a separate chamber of the Supreme Court?

- On this, we will discuss and we are discussing these days. And I don't want to draw conclusion on personal basis. we will discuss it we have already started this discussion. But I want to say at this stage the issue is not much or not so important - if we have separate section or just anticorruption court. The real very key point is again an independence of those judges, of anticorruption judges. And this is again - who are they? Who chooses them? How are they selected? How are their career guaranteed? And their independency in judging better guaranteed? In one way, or in the other way. So, it’s not just the practical issue or lets say organizational issue that then would be not so important. But it is the key point, and the key point - to be solved what the best way to have judges that will judge along the evidence, which is brought to them, and not according to possible political or influence of any kind.

So basically this is a question of selecting of these judges, if they are independent - it doesnt matter whether it’s is the anticorruption court or the separate chamber?

- The key point is the selection.

And this discussion is on the way?

It is ongoing.

If Ukraine doesn’t start this anticorruption court by the end of march 2018 - what consequences will it have, what will be the reaction of our western partners?

- I cannot speak for the western partners, I can speak for myself. I don't know actually, But Ukraine needs independent judges,  and judges who are brave enough to take decisions on this, but who are not have to be heroes, or martials in order to be honest and professional judges, I mean you have to select the right judges, independent judges, and you have to guarantee independence throughout their career. This is pretty much needed. What else? The corruption remains detected, is detected by the investigators, but then you go through the stage of prosecution, but also to the stage of judgment, and then punishment, so to hold this person responsible.

The current judicial system can’t provide that?

- It doesnt. It does not consistently provide this.

So Ukraine needs or anticorruption court or chamber?

- Yes, Ukraine needs for itself, once says, why to do it for international partners asking it, it first for all in their own interest. Needs independent professional judges, whose activity is guaranteed, whose independency is guaranteed by the organisative means.

We have not only NABU, we have the specialized anti-corruption prosecutors’ office, national agency of prevention of corruption. We will have the national bureau of investigation. Don’t you think that Ukraine have too many anticorruption agencies?

- You have a full arsenal of anticorruption agencies. you did have it even in the past. you had SBU, financial police, the police, the prosecution. they were there in place even in the good old times.

So, we didn’t need all these newly created agencies?

- No, as i said - you did have many, and you do have now - many bodies.

What is the difference now?

- The difference is the way their heads and head staff chosen and is selected. the fact they are not put there just by those who are in charge, in the government in that very moment, and that their task is to effectively fight the corruption. Independently of the political color of the people under the investigation, this was not the case in the past for sure. So what you need is not more agencies or more tools, is the way good people to be put on the top of them, good professional staff. Professionalism you have in Ukraine, what you still lack is this concept of independence. So, to severe any link with any political or economical power, and to give the possibility to those who are in these bodies, to work independently. You know to fight crime in general - independency is not that priority, because you normally do not have pressure from one side on the other side, on let's say normal crime, But when it comes to the white collar crime - crimes, that committed by lets say powerful people, economically or politically, than either you have people who have been selected independently, and who act independently and whose independency guarantees, or else you don't really do anything.

Brief question. Out of these 3 bodies - who works the best?

- I'm not here to do any of these ranking... they should work all the 3 on the same level. on the top level. this needed for the Ukrainian people first of all.

And how many years do we need to fight the corruption? its not the matter of one day you said...

- It’s not matter of days, it’s the matter of years. But Ukraine is in such serious situation - that either you have some strong immediate reactions soon, immediately, which will reverse the course of this serious illness, or the patient might die. So, we need something visible, concrete, effective very soon. Which might be a proper court case, on serious cases of corruption, which will end up setting the principle that nobody is untouchable. This you need very very soon. And then it will take some years, because it shows the cultural process, the prevention process - that it is not just putting in jail someone who has done something wrong, It's much more than that. Thats why you need time. But some actions have to be taken soon, the patient is seriously ill.