False start of Ukraine’s law enforcement reform

Author : Viktor Trepak

Source : 112 Ukraine

Controlled fight against corruption became a mean of struggle for power
22:04, 27 October 2016

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Key role of security forces in the usurpation of state power by Yanukovych necessitated a fundamental change of the system status and operating principles. The society, and the new government had a task to replace the politicized security forces genuine law enforcement.

The political leadership of the state is traditionally considered such bodies as one of the main levers of power realization, its preservation and strengthening. Therefore, replacement of power structures proper law enforcement authorities demanded that the new political leadership of a new outlook and a completely different sense of justice. Unfortunately, such a breakthrough has not occurred, and therefore the law enforcement system remains under-reformed, its operation is accompanied by a permanent interagency conflicts, dragging the powers and the like. It is still not developed a strategy for judicial reform, it is replaced by haphazard and subjective-oriented changes, is transformed into an imitation artificially slowed down, felt the attempts cancel the already achieved.

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If we use sports terminology, we can say: without providing law enforcement system reform should start, it quickly tend to lead to the finish. Especially it can be well traced by the example of the new Anti-Corruption Authorities (NABU, SAP), the prosecutor's office and the State Bureau of Investigation (RRT). NABU and SAP want to neutralize, the Prosecutor's Office is trying to maintain the status quo, and even to expand powers of the pre-trial investigation (that, in fact, been made the latest changes in the Constitution), and the "run" RRG obviously made dependent on the development of the overall situation and results of the competition by definition of its management.

First there was the NABU

It should be noted that the new anti-corruption bodies in Ukraine were mainly due to the pressure on the power of civil society and the efforts of international partners of Ukraine, primarily the US and the EU. The formation of new anti-corruption bodies was absolutely the right decision. After all, the existing law enforcement agencies, given their substantial political dependence and serious corruption prevalence, could not destroy the corruption octopus, tightly enmeshed in the country.

Related: Venice Commission: Level of political corruption in Ukraine decreased

Even before the launching of NABU, created to combat corruption, elite, its director A.Sytnik main activity of this body has identified the fight against corruption in the courts and law enforcement agencies. Perhaps, among other things, NABU head came then from the public mood, because after the Revolution Advantages of society was ready to "stand on the forks" of judges and law enforcement officers resorted to openly repressive measures, allowed the mass outrage, a gross violation of the rights and freedoms of citizens. So, of course, is the direction for the NABU is important, but it can not be the main thing. After all, there is an even more dangerous form of corruption - political, which is the kernel of elite corruption.

The reality of Ukraine is that the courts and law enforcement agencies have been put at the service of the political leadership, not the society and the state. Objectively, the "edge" NABU should be aimed primarily at the political structures, in particular the Parliament, the government, the presidential administration. They are the center of the adoption of critical government decisions on all important matters. They "made" corrupt ideology, that's where the corruption relations grow in the lower power level, in the justice and law enforcement, economy, banking and financial sector, and so on.

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In a short period of its activity, NABU has made several steps aimed at combating political corruption, which is not seriously scared of those who consider themselves the state leadership. Because, firstly, these steps have not been agreed "at the top" (which previously could not in principle be), and secondly, they are potentially threatened by those who at the "top". And because they could not be left without an adequate response.

The programmed conflict

This programmed the conflict arose gradually, first in the form of disputes between the GPU on the one hand and the NABU and SAP - for the other, concerning powers, disputes over jurisdiction of cases of mutual accusations of violating the law and complaints about illegal actions of the part of the opponent's employees. The culmination was the discovery on August 12 this year, GPU NABU staff workers carrying out surveillance for one of them, their further detention and attracting NABU commandos for their release. Add to this "event" infamous GPU investigator Sus with a search in the NABU.

But all this - only the visible side of the conflict. In fact, it is not due to the imperfection of the legislative regulation of office of the GPU and NABU, and personal-political interests. To understand the essence of the conflict is important few points.

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Firstly, it is necessary to proceed from the fact that in our reality the fight against corruption - a kind of power struggle and "share" of its operation. Especially when it comes to the fight against corruption officials of higher level officials.

Secondly, the fight against the elite, and especially political corruption has always been "in the hands" of the president. In fact, the president determines any of the VIP-officials can "take", but someone - no. After all, this fight is a powerful means of "educating" the inhabitants of the high government offices feelings of personal loyalty to the highest official. It is also an effective means of political PR, used by those who control the course of this struggle (today it appears more than ever).

Thirdly, traditionally the president has full control over the organs with anti-corruption functions: for example, such control over the SBU, he had de jure (by the Constitution), on the GPU - a de facto (contrary to the Basic Law).

Fourth, the situation began to change dramatically after the establishment and launching of the NABU and SAP. Controlled fight against corruption as one of the main levers of influence on power and security, began to "escape" from the hands of the head of state.

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It became clear that the previous measures taken at the stage of adoption of relevant legislation (where the head of state had the opportunity to appoint a Director of NABU, although the Constitution this right it does not give) and at the stage of NABU and SAP (the assignment of the rank of general, the presence of oath detectives and workshops, inviting the heads of these bodies at the various events in the AP, etc.), do not ensure the establishment of the new authorities of the desired level of control. Therefore had no choice but to start a "retard" NABU and SAP. Therefore, instead of the joint fight against corruption within their powers law enforcement agencies were involved in the civil war. It is noteworthy that for the investigation of the confrontation between the GPU and the SBU took NABU. However, from the point of view of impartiality of the investigation, it is wrong, because the Security Service of Ukraine (in particular, in the face of Glaucus 'K') in this conflict was in fact on the side of the GPU.

Related: Top hits of Ukrainian corruption this summer

About hidden participation of employees of the SBU in the said conflict can testify to the fact that the operative support of investigation of the confrontation between members of the GPU and the SBU NABU manages internal security, which, by definition, can only deal with the employees of the Service. In addition, it is very timely, just in the middle of the confrontation, the SBU was the protocol on corruption offenses to the employee NABU. In connection with the investigation, "the events of August 12, 2016 with the participation of employees of the GPU and the NABU" Prosecutor General Yuri Lutsenko dismissed from duty of three employees of the GPU (according to available information, including Sousse investigator). According to the chairman of the SBU Hrytsak investigators SBU leadership NABU also offered to take a similar decision. However, information from NABU for such suspension yet. Everything is quiet.

To be continued...

These circumstances do not mean that the conflict between the GPU and exhausted NABU. Apparently, he just went into non-public stage and the sides (of course, under the supervision of the supreme arbiter) agree on the key issues of "peaceful" coexistence. To understand the opaque arrangements of the subject and their implications is important set of circumstances.

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First, the conflict is beneficial to those who want political control over the NABU and SAP, for whom such control is essential. Conflict leads to serious loss of reputation NABU and SAP, weakens these organs, does not allow you to work and increase their capacity, so their opponents will be in every way to heat this conflict in order to achieve their goal.

Secondly, it is possible that they will be able to find convincing "arguments" that will make the management of anti-corruption bodies more accommodating and sensitive to the position of the political leadership.

Third, intensified efforts to drive a wedge between NABU and SAP, which can only work effectively as a whole. Apparently (including public claims director NABU relatively under-active position SAP prosecutors in the courts), the relationship between these bodies gave a crack, which is equally detrimental to all of them.

Fourthly, it is clear that NABU not receive the right to an independent telephone tapping and holding other specific operational activities, which are now implementing it in the near future, with technical support (and, consequently, under the control of) the SBU. That will not happen, even though the IMF demands that caused the provision of Ukraine of the next credit tranche vesting NABU this right.

Fifth, as predicted in the summer, the conflict will be an occasion to narrow NABU competence by expanding the legislative powers of the public prosecutor regarding the resolution of disputes about jurisdiction corruption cases. In the end, the subject of opaque arrangements may be certain things that are in the production of NABU. In particular, although it is someone out there can seem odd, the case of judge Chaus. This "servant of Themis" for obvious reasons, is extremely important for certain individuals from the presidential entourage. Therefore, it may be that he is anywhere (either in the Crimea or in Belarus, or anyone) is not ran, and quietly waiting for the house of the political isolation of the business, which before nobody will actively not be engaged.

Taken together, these moments negate statutory NABU independence and make it a key subject of the elite counter corruption in the fake body that will operate on the same principles as other law enforcement agencies, which are traditionally assigned the role of "service" the interests of the political leadership of the state.

Related: Freedom House: Ukraine: Infighting Threatens Anti-Corruption and Prosecutorial Reforms

Thus, the US ambassador to Ukraine, Marie Yovanovitch immediately expressed her concern about the introduction to Parliament of the bill to expand the powers of the public prosecutor in the jurisdiction of the definition of corruption cases. Moreover, according to the information available, it has recently appealed to the President with a special letter in which he asked not to limit the independence and powers of the NABU. In fact, the United States presented the supreme power in Ukraine diplomatic ultimatum, failure is fraught with negative consequences for her. This means: the main strategic international partner of Ukraine convinced that the political leadership of Ukraine set a course back to the past; that his pro-European rhetoric is clearly not consistent with his actions.

Apparently, the public prosecutor Lutsenko tried to somehow mitigate the critical attitude towards the idea of the bill referred to the Prosecutor General and as the initiator of its development during a personal meeting with the heads of foreign diplomatic missions of states - members of the EU, US and Japan, when assured them that his "agency takes very constructive position and does not intend to infringe on the independence of the newly formed anti-corruption bodies."

Competition as a farce

In the midst of a conflict between the GPU and the NABU I also suggested that it would lead to inhibition of the process of establishment of the State Bureau of Investigation. This conclusion arises from both the general logic of events in the field of law enforcement, as well as an analysis of the composition and activity of the tender committee for the selection of candidates for senior positions RRG.

But in order to understand the essence of this competition, it is worth briefly on the activities of the new tender committees as a whole. In the post-revolutionary period, the competition has become almost the main trend and the key feature of each reform. Many saw them as a panacea for political dependency and corruption in the public service.

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At first, it did seem that the competitions are able to change the principles of personnel policy, the essence of which was self-preservation and self-reproduction of power. In the wake of the revolutionary transformations the new political leadership of the state could not directly refuse social reformers of the need for human resource competition - that society just would not understand. Although internally its leadership did not accept, and tries to control the bankruptcy process. It was evident already in the first competition for the selection of candidates for the post of Director of NABU.

 But then the competitive commission could work as independently as possible (according to national standards). This contributed to: 1) strong competition commission (which included such well-known public figures, such as R. Chubarov, V.Musiyaka, Y. Butusov, Y. Hrytsak, Zakharov, J. Zisels, E.Nischuk); 2) The great public interest in the competition and its wide media coverage; 3) the importance attached to this competition by international partners who, in addition to political influence on the domestic authorities, assisted by the newly created anti-corruption bodies financially and technically.

To some extent, "burned" on NABU, the government made serious conclusions for themselves and take the necessary measures (from the stage of the legislative regulation of the competition), in order to further protect yourself from any human excesses, especially with regard to the replacement of key government posts.

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Today it is obvious that the country's leadership has successfully mastered this democratic instrument for personnel selection and skillfully began to use it for their needs. Examples include the results of the competitive selection for the positions of heads of Mykolaiv and Kyiv regional state administrations. In both cases, the contest results were predictable in advance. And on Senior Civil Service Commission (made up, by the way, Parliament is still unable to delegate its representatives) "did not fail": it provided an opportunity to forecast fully justified. In the first case a candidate is declared the winner, which is associated with a group of Yarema-Danilenko, in the second - the candidate that bind to Medvedchuk and former People's Deputy regionals Moskalenko. And the strings in both cases stretch on Bankova, which actually solved these issues. Similarly, everything will happen and the competition for filling judicial posts, which provided the latest amendments to the Constitution, called "judicial reform".

For manual control of the competitions in this case it is sufficient to establish political control over the two bodies - the High Qualification Commission of Judges and the High Council of Justice. I assume that this task has been finished, so with such ease and appeared in the Basic Law provision on the competitive selection for judicial office.

Staff troubles

According to the same scenario is planned a competition for the post of Director of the RRG and its deputies. At least, everything is going to ensure that, in principle, exclude any staff excess in the formation of leadership of this important body, which has the potential to be a key in the entire law enforcement system, having accumulated a significant part of the GPU office, the SBU, the Interior Ministry, DFS, and NABU ( recently, in general, in some plans, should become a structural division of RRG). This is indicated by a number of circumstances.

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Firstly, the composition of the tender committee. Its majority is formed of representatives of the two political forces - BPP (President) and the "People’s Front". So, there is a high probability that the leadership positions in the RRG will be just divided by agreement between the two forces: the director - from BPP (President), substituent (s) - from SF. It is not excluded that the package of agreements will also include other important issues of both political parties. Therefore, the independence of the future management of RRT, and therefore - and the very law enforcement authority, do not have to speak at all.

It should be noted that presidential appointees to the commission initially linked with people's deputies from BPP A.Granovskim, which in political circles is called "responsible" for the RRG. Key in the presidential troika members of the tender committee considered the figure of the lawyer T.Slipachuk.

By the way, in early October, the president awarded her the title of Honored Lawyer of Ukraine, which, in the context of its participation in the competition committee, it is not quite correct.

Secondly, the work of the commission does not have the attention of the public and the international partners, which was focused on the work of the commission for the selection of candidates for the post of Director of NABU. Such indifference deprives the Commission of the activities captious public control, and therefore - is expanding its capacity to act at their own discretion.

Thirdly, the course of the competition and the interim decision of the commission, in the general context appear to be quite symptomatic.

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 Everything is already decided "before us"

 That is what happened with the candidate for the post of head of the RRG - it was defined before the competition are who consider themselves authorized to adopt all government decisions. Competition also plays the role of formalities that must only consolidate this "state" solution. Certainly, the main contender for the post of Director of the RRT is "doubles" in case of any surprises

 If someone believes that the long delay in the conduct of this contest due to a complaint one of the contenders for the poor quality content of tests, it is wrong to be clearly understood. Competition will last until the formation of directors RRG management will not be one hundred percent sure that the director takes his place "their" candidate.

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