Fighting Corruption the Ukrainian Way
For three and a half months I took part in the selection of candidates for the post of Director of the National Anti-Corruption Bureau of Ukraine [NABU]. I had previously avoided the fight against corruption seeing it as totally artificial and manipulative although I put a lot of effort into improving access to information and increasing the state’s transparency. Only that, in my opinion, could be done in our conditions to reduce corruption. However participation in the first competitive selection by civic figures of the head of an elite law enforcement body interested me, first and foremost as a test of both the state’s maturity and that of civil society, and I therefore agreed. The results were interesting in all ways and I hope that my reflections on this will be useful for future analogous competitions.
Specific features of Ukrainian corruption
Most unfortunately corruption has become the cornerstone of Ukraine’s state. On the eve of 2005 I wrote in an article entitled “Plus the deKuchmization of the entire country” that “the new laws will not work if the foul, semi-feudal social system remains, when only closeness to those in power ensures benefits and privileges, and if fiscal pleasure does not make it possible to work, not stealing, then each is vulnerable for the entire state might, and thus each has to pay their tithes”.
Over the last 10 days this system has only developed still further and reached its culmination during the rule of Viktor Yanukovych. However we have not moved very far at all from that a year after the Revolution of Dignity. Money is still laundered through various means, through a corrupt component in tenders; money and property of state monopolists taken out via subsidiary companies; the use of funding not as intended, etc. criminal business is given protection mainly by the law enforcement bodies; smuggling, state extortion rackets, tax evasion are rampant; positions sold, and so on. Against the background of the military aggression in the east of the country with all its consequences this is particularly revolting.
Hatred towards bigtime corrupt dealers gets along fine with widespread everyday corruption. Ukrainians think that it’s necessary to thank anybody (officials, doctors, teachers, plumbers, etc.) for services providing without fully understanding the difference between a gift and a bribe. At the same time many hope that you only need to put corrupt dealers behind bars, as many of them and for as long as possible, and corruption will be overcome.
These views are flawed and are based on an understanding of corruption as a primarily moral issue. Yet in fact this is a political-economic issues. The biggest is corruption at the highest echelons of power. Corrupt relations are a substitute for market relations, and without the emergence of a real market, with division of business and power, the fight against corruption only through punitive measures cannot be successful. There also need to be various administrative measures aimed at introducing new information technology in the system of state governance; reduction in state control over business; the introduction of anti-corruption barriers, for example, officials’ income and spending declarations, etc. However neither the new laws, nor the creation of new institutions – the National Anti-Corruption Bureau and National Agency on Countering Corruption will help if the system of relations between business and state is not radically changed. There have recently been cheering signs of specifically such changes.
For example, the Cabinet of Ministers is aiming for significant reduction in regulatory acts, in particular, permit procedures, and introduction of electronic management and electronic services which will remove the human factor in decision making. Draft bills have been drawn up which introduce mandatory declaration of income and expenditure, as well of monitoring of officials’ declarations; a tax amnesty; reduction in payments by cash; and incentives for lawful behaviour by civil servants. There has been a noticeable increase in the number of criminal proceedings regarding corruption offences by officials of different ranks. The President has declared a course aimed at reducing the power of oligarchs which is directly linked with separating major business interests from the state. Evidence of this course being followed was seen in the recent situation with the Privat financial – industrial group and the resignation of Ihor Kolomoisky from his post as head of the Dnipropetrovsk Regional State Administration. Time will show how permanent this trend is.
Selection of candidates for the post of Director of NABU: the facts
However let’s return to the competition. NABU is a law enforcement body given the responsibility to prevent, identify, stop, investigate and solve corruption crimes committed at the highest echelons of state power, specifically state officials of the first and second ranks. According to the Law on NABU, the selection commission should be made up of 9 members: three from the President; three from the Cabinet of Ministers; and three from parliament. Those appointed were: Refat Chubarov, historian and Head of the Mejlis of the Crimean Tatar People; Yaroslav Hrytsak, historian and professor of the Ukrainian Catholic University; and myself, human rights activist and Director of the Kharkiv Human Rights Group; Yury Butusov, journalist and Chief Editor of the Internet publication Censor.net; Josif Zissels, human rights activist and President of the Congress of National Communities of Ukraine; and Oleksandra Yanovska, lawyer and Professor of the Academy of Advocacy, ad hoc judge for the European Court of Human Rights; Giovanni Kessler, lawyer and Director of the European Anti-Fraud Office; Viktor Musiyaka, Professor of the Kyiv-Mohyla Academy; and Yevhen Nishchuk, actor from the Ivan Franko National Theatre and former culture minister.
The Director of NABU should be a Ukrainian national with a higher law education; should have worked in the law sphere for at least 10 years; should have experience of working in managerial posts of at least 5 years; be under 65; speak the State language and be capable, in terms of his or her professional and moral qualities; educational and professional level and state of health to carry out the relevant duties. It is prohibited to appoint a person who has for two years held a leading post in political parties or had contractual relations with them, or those who over the last two years worked in special anti-corruption units of the law enforcement bodies.
The selection commission met for the first time on Jan 9 and spent quite a lot of time putting together an announcement of the competition due to the unclear wording in the law of the qualification requirements. The main discussion was over the issue of whether foreign nationals can apply for the post. The law gave grounds for two interpretations. As a result, foreign nationals were allow to apply on condition that effectively excluded the possibility of their participation – that before the deadline for applications they receive Ukrainian citizenship. As a result only one foreign national took part in the competition – the former Georgian Deputy Prosecutor General David Sakvarelidze.
From Jan 12 when the advertisement was published, we didn’t lose a single day. A month was given for preparing and submitting documents. On Feb 11 the applications of 176 applicants were opened. From Feb 11 to 21 the documents of 176 applicants were posted on the President’s website. The Commission studied these documents and kept the 106 candidates who met the competition requirements for the post of director in accordance with the law. From Feb 23 to 26 Feb, the commission held interviews with these 106 candidates and shortlisted 21 for the second stage of the selection process – those who gained the support of three or more members of the commission. From March 2 to 6, the Commission held more detailed interviews with them and on March 6 selected the four best candidates for the final selection of two or three to be submitted to the President.
On March 10 their documents were sent by the President’s Administration for special and lustration checks. Those checks took longer than we had expected. One of the four candidates, Yakiv Varichev did not pass the SBU test, leaving three candidates – Artem Sytnyk; Mykola Siryi and Viktor Chumak. On April 6 the commission interviewed all three candidates again and chose two of them – Sytnyk and Siry – to be presented to the President. On April 16 President Petro Poroshenko appointed as Director of NABU 35-year-old lawyer Artem Sytnyk who from 2001 – 2011 worked as an investigator for the prosecutor’s office. All meetings of the commission were broadcast live on the Internet.
I’ve been pursued by the question: “What do you need this for?” for over 25 years. I hear it constantly when I’m lodging requests for information with the Interior Ministry or SBU, or I propose changes to some kind of administrative procedure or try to defend a person. It was the same with the competition. A fair number of people thought that the commission should look through the documents, choose the 10 best candidates, hold half-hour interviews with them, choose the three best and submit their names to the President, that’s all.
I however insisted that each person who submitted applications and met the relevant requirements for the post should at least have the right to meet with the commission and explain why they wanted to be NABU Director. If we refused them this, we were discriminating against them.
Another problem was getting a quorum. We constantly experienced this at the stage of studying the documents and the first round of interviews when each day we had to find time when six members of the commission could be present to take decisions. Giovanni Kessler did not take part in these stages, Yaroslav Hrytsak was ill and also had important trips abroad. Josif Zissels twice had to go abroad. Yevhen Nishchuk and Yury Butusov were in Kyiv but their work did not make it possible for them to attend meetings. Yevhen had two performances and rehearsals each day, while for Yury events in the east of the country were clearly more important and it was hard for him to pull himself away.
Since all members of the commission worked on a voluntary basis, you couldn’t complain: each volunteer gives as much time as he or she can since they’re working in time free from their main job. On the other hand, having agreed to take part in the work of the selection commission, each person takes on certain responsibility and if there is no chance of taking part, it’s better to refuse. Let those who have more flexibility over their working time take part. I think it would be advisable in future to envisage written consent from volunteers to membership in the commission.
A dry description of the course of the competition would not convey all the hurdles and the public attention to its running. And there was a huge amount of attention. The course of the completion, the candidates for the post, their qualities, income and abilities were constantly discussed on television, in the printed media, Internet and social media. Many considered that it was all fixed, that there was no real competition, and the director would be – here a name was given, either David Sakvarelidze, or Viktor Chumak, or Anatoly Matios. Some made up scenarios in which the President’s Administration was pushing ‘its’ candidate, fought against those scenarios and then triumphed over their victory. This looked pretty comical since there were simply no such scenarios. Of course the President’s Administration, like everybody else, had their idea about good and bad candidates, however I can confirm that there was no pressure, advice or recommendations from the President’s Administration. Such advice and recommendations were heard from individual MPs, civic organizations and their members who, besides ordinary articles in the media, actively corresponded with the commission informing of their assessment of candidates, trying to influence our choice. However such behaviour can also not be called pressure.
With respect to the qualities needed by the director, two views dominated among the public. The first, pragmatic view, which was supported by noticeably less people and which is close to mine, is that we needed to look for a strong individual, a decent, principled, experienced professional with experience of successful investigation of criminal offences. The second, much more popular, was that in no way could we elect a former or current law enforcement person, that they’re all corrupt, and that with such a director the new institution will itself be doomed to become corrupt. Therefore it’s necessary to choose either a foreign national who doesn’t have friends in, contacts, fellow countrymen here, or a well-known figure with an impeccable reputation who well understands the phenomenon of Ukrainian corruption. Often the supporters of this view considered that it is not at all necessary to appoint a lawyer to this post. They didn’t give any thought to how such a person will be in charge of investigating corruption offences. Both positions were also represented in the commission.
Candidates for the post can also be divided into two groups. The first was made up of current or former law enforcement officers from the Interior Ministry, the SBU, prosecutor’s office, etc., from majors to generals. The second – businesspeople, lawyers, academics, tax officials, some of whom had previously had some experience of work in the law enforcement bodies. The commission saw a lot of interesting people whose ambition to hold the post of NABU Director was well-founded. There were a number of memorable individuals. However the commission proved to be in the position of Agafiya Tikhonovna from Gogol’s ‘Marriage’: “If we put Nikanor Ivanovych’s lips with Ivan Kuzmich’s nose, and take some of the swagger which Baltazar Baltazarych shows, and perhaps add to that some of Ivan Pavlovych’s portliness, I’d make up my mind immediately”. There was no candidate whom the members of the commission didn’t have some hesitation regarding, with different issues about all of them. There was also a problem in the fact that the commission members’ assessments did not coincide with respect to candidates’ advantages.
For example, it remains a mystery to me why the members of the commission did not support Halyna Klymovych at the second stage. She is a former Prosecutor General’s Office investigator on particularly important cases, is well-known for being independent, principled, unable to be bribed, and for her successful investigations of many crimes. It seemed like here was the future director! She holds considerable authority in her professional milieu. Maybe what was involved here was that the majority of members of the commission are far from that milieu? Or maybe that Halyna Ivanivna did not do anything to demonstrate her qualities, did not talk about her successes. One way or another she did not end up at the stage of carrying out checks.
The same happened with another, in my view potentially very strong candidate, Hennady Vasyukov whom I would have appointed director. At not quite 40 he has managed to make a career in the tax service and tax police, gain three higher educations, defend his PhD thesis, and over the last four years be successful in business. He demonstrated a deep understanding of the phenomenon of corruption and proposed original methods of avoiding it. However only two members of the commission voted for him. Maybe the stereotype of tax officials as bribe takers was instrumental in this? Or the argument put by Yury Butusov who said: “How will the public view our choice if we support the former head of the supervisory board of the alcohol producer Khortytsya?”
There were other strong candidates whom I, nonetheless, did not support. The extremely profession Anatoly Matios and Dmytro Horyachev who stood out sharply with their varied knowledge and abilities, worked during the Yanukovych regime, in the President’s Administration and the SBU, respectively, and that was the reason I rejected them. David Sakvarelidze and Yury Sukhov, also very professional, were largely focused on the punitive function of NABU, and I consider that large numbers of criminal prosecutions will not reap a positive result. You mustn’t mix up an axe and a scalpel.
I also did not support Mykola Siry and Viktor Chumak. Both are known for their principle stand and independence, but they have almost no experience of investigating crimes which for me is a key requirement.
Yakiv Varichev and Artem Sytnyk have such experience. Varichev looked more convincing and stood out generally with an unusual biography. As an investigator on particularly important cases for the Soviet Prosecutor General, back at the end of the 1980s he had great success in fighting corruption in Central Asia and Azerbajan, as head of large investigative operation groups. Later he returned to Ukraine, although after the collapse of the USSR he was offered high posts in the Russian prosecutor’s office. For family reasons (his son’s illness) he was forced to move to Spain Having returned from there he was one of the few defence lawyers who worked both in Ukraine and in Russia. This cultured, professional and open person who has clearly formulated his views was liked by the majority of members of the commission, however he did not pass the special SBU test.
What is more, the opinion, in breach of legislation, came with the stamp “secret”, meaning that neither the members of the commission who do not have access to state secrets, nor Barichev himself, could even look at it. Nonetheless, as I understand it, the SBU found the fact that Barichev has his own lawyer’s firm in Russia and goes there often suspicious. I think that this is a mistake and as a result a person who could have been of great use to the state is removed from working in state institutions.
The commission also liked Artem Sytnyk for his competence, principles. You could see a strong character. You got the impression that 10 years of work as an investigator had not spoiled him, that he was capable of resisting unlawful influences.
I think that the removal of Varichev from the competition had a negative impact on those members of the commission who were planning to vote for him. The fate of the commission was hanging by a threat, with several members of the commission, irritated that their choice was restricted, discussing the advisability of a new competition. Nonetheless, the collective intelligence won out, and the commission voted for two candidates out of the three and the competition ended successfully.
I hope that the National Anti-Corruption Bureau will work. Today everybody understands that corruption is really very dangerous for the country, together with the war, and is a threat to statehood. The public will support the Bureau as soon as it can demonstrate good results, and does not let itself be turned into a fiction should any of those in high positions ever have such a wish.