CUR­RENTS CHANGES IN THE FIGHT AGAINST COR­RUP­TION IN UKRAINE, AND HOW THEY IN­FLU­ENCE WHITE COL­LAR CRIME PRAC­TICE

Kyiv Post Legal Quarterly - - News -

Ukraine in­her­ited the post- Soviet puni­tive sys­tem of law en­force­ment agen­cies and lack of in­de­pen­dent courts. Pros­e­cu­tors have tended to scorn hu­man rights and right to de­fense. For 25 years of in­de­pen­dence, sys­tem not only has not got rid of the an­tidemo­cratic past, but also got an­other ter­ri­ble dis­ease - to­tal cor­rup­tion. As a re­sult, in­ves­ti­ga­tory bod­ies have lost pro­fes­sional staff and ex­pe­ri­ence. An at­tor­ney’s qual­i­fi­ca­tion lost its value. Why do you need an at­tor­ney, if crim­i­nal prob­lems may be quickly re­solved with a bribe to a pros­e­cu­tor or a judge? The on­go­ing le­gal re­forms in the field of crim­i­nal jus­tice were episodic and had no sig­nif­i­cant im­pact. A er the Rev­o­lu­tion of Dig­nity, start­ing from 2014 the le­gal sphere of Ukraine has been sig­nif­i­cantly re­formed. Part of le­gal re­forms were suc­cess­ful, the re­sults of some of them need the time to be as­sessed, some re­forms failed. The level of cor­rup­tion in Ukraine is still ex­tremely high. Ukraine is the 130th least cor­rupt na­tion out of 175 coun­tries, ac­cord­ing to the re­port by Trans­parency In­ter­na­tional. Un­der pres­sure from so­ci­ety and for­eign part­ners, pri­mar­ily the United States, two new bod­ies were cre­ated in Ukraine – the Na­tional Anti- Cor­rup­tion Bureau of Ukraine (here­ina er – the NABU) and the Spe­cial­ized Anti- Cor­rup­tion Pros­e­cu­tor's Of­fice (here­ina er – the SAP). The task of the first body is to iden­tify and in­ves­ti­gate cor­rup­tion among the coun­try's senior of­fi­cials ( politi­cians, min­is­ters, gover­nors, judges, pros­e­cu­tors). The SAP’S task is to carry out pro­ce­dural man­age­ment (to sign no­tices of sus­pi­cion, au­tho­rize de­tec­tives to con­duct sep­a­rate in­ves­tiga­tive ac­tions), and also to con­duct pros­e­cu­tion in court. A er two years, the newly cre­ated anti- cor­rup­tion in­fra­struc­ture of the NABU/ SAP has shown it­self to be quite ef­fec­tive. There was an in­no­va­tion never seen be­fore in pre­vi­ous years - of­fi­cial no­tices of sus­pi­cion of cor­rup­tion are be­ing is­sued not just to the po­lit­i­cal op­po­nents of the au­thor­i­ties, but to the coun­try's top of­fi­cials, re­gard­less of their prox­im­ity to the pres­i­dent or the au­thor­i­ties as a whole. Par­lia­ment deputies, the head of the tax ser­vice, a mem­ber of the Cen­tral Elec­tion Com­mis­sion, the mayor of a large city, pros­e­cu­tors of the Gen­eral Pros­e­cu­tor’s Of­fice, and a dozen judges have been de­tained on cor­rup­tion charges. SAP de­tec­tives and pros­e­cu­tors ef­fec­tively use all pos­si­ble ar­se­nal of crim­i­nal in­ves­ti­ga­tions - spe­cial cover op­er­a­tions, wire­tap and covert sur­veil­lance, in­ter­cep­tion, in­ter­na­tional co­op­er­a­tion. They re­veal through their coun­ter­parts, sim­i­lar agen­cies the ben­e­fi­cia­ries of ac­counts in for­eign banks and off­shore com­pa­nies. NABU- SAP are able to fo­cus on and con­duct long-term and com­pre­hen­sive in­ves­ti­ga­tions. They also en­joy ef­fec­tive sup­port from in­ter­nal an­a­lysts (econ­o­mists, au­di­tors) and tech­ni­cal ex­perts ( in­clud­ing IT spe­cial­ists). These ap­proaches and op­por­tu­ni­ties dis­tin­guish anti- cor­rup­tion bod­ies from the other law en­force­ment agen­cies, whose in­ves­ti­ga­tions and ap­proaches seem ar­chaic by com­par­i­son.

What was the ba­sis for this suc­cess?

My guess is that the key con­di­tion for suc­cess is a prop­erly built struc­ture (the ar­chi­tec­ture of anti- cor­rup­tion bod­ies. The le­gal struc­ture of NABU- SAP pro­vides for the ab­sence of po­lit­i­cal in­flu­ence) and their re­cruit­ment sys­tems. All NABU- SAP em­ploy­ees un­dergo a tought and multi- stage open se­lec­tion process (anony­mous test­ing of knowl­edge and skills, a char­ac­ter test, and poly­graph and psy­cho­log­i­cal tests). Rep­re­sen­ta­tives of civil so­ci­ety have an op­por­tu­nity to ex­press their views with re­gard to spe­cific can­di­dates and par­tic­i­pate in in­ter­view process. NABU de­tec­tives have a com­pet­i­tive re­ward sys­tem, like that of lawyers of law firms. A strong in­ter­nal se­cu­rity ser­vice has also been formed in­side the bod­ies. NABU em­ploy­ees are pe­ri­od­i­cally tested by poly­graphs, and are sub­ject to se­cret in­tegrity checks. As a re­sult, the anti- cor­rup­tion bod­ies now have an apo­lit­i­cal, highly pro­fes­sional and well- mo­ti­vated team. We know of no case of the leak­age of in­for­ma­tion re­gard­ing in­ves­ti­ga­tions, or cases of cor­rup­tion. In turn, the lack of cor­rup­tion and pro­fes­sion­al­ism in the in­ves­ti­ga­tions caused a de­mand for the ser­vices of pro­fes­sional at­tor­neys and law firms.

Porch13, BC "Bashta5" Ry­bal­ska Str., 22 Kyiv, Ukraine, 01011 Tel. +38 044 581 16 33 www.vb­part­ners.ua

Denys Bu­gay Part­ner, head of WhiteCol­lar Crime prac­tice at VB PART­NERS

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