Open Letter on Improving the Anti-Corruption Infrastructure in Ukraine
We, the undersigned, human rights defenders, civic figures, activists and lawyers, have united to study and address the systemic problems that have emerged in the work of anti-corruption bodies, which reduce its effectiveness, weaken the credibility of the anti-corruption system in Ukraine and even threaten its very existence. Among us are organizations and individuals who stood at the origins of the anti-corruption system, participated in the preparation of anti-corruption legislation and the election of the first NABU director and the head of the SAPO, worked in the Public Integrity Council, etc.
We strive to build a state governed by the rule of law, where corruption has no place. But we have to admit that anti-corruption agencies do not adhere to the rule of law, have inherited Soviet approaches from other law enforcement agencies and imitate the fight against corruption, often engaging in PR and satisfying the thirst of a part of society for repression instead of ensuring fair justice.
One of these systemic problems is the appointment of perpetrators at the pre-trial investigation stage, even before suspicion is served. This is accompanied by the illegal and often manipulative disclosure of secret investigative search data, as well as information campaigns aimed at discrediting the defendants in criminal proceedings. Such actions grossly violate the principle of the presumption of innocence guaranteed by Article 62 of the Constitution of Ukraine and Article 6(2) of the European Convention on Human Rights (ECHR), as well as the right to respect for private and family life (Article 8 of the ECHR). At the same time, in the vast majority of cases, the High Anti-Corruption Court (HACC) not only fails to respond to these obvious violations, but, under constant pressure from the NABU, the Specialized Anti-Corruption Prosecution Office (SAPO) and a certain part of specialized NGOs, instead of properly responding to such violations, it actually “legitimizes” them. This leads to a combination of efforts of the pre-trial investigation bodies and the court to ensure that there are no alternative repressive decisions, when the court takes the side of the investigation and prosecution and treats suspects as criminals, even though their guilt has not been proven.
The practice of unlawful delegation of exclusive court functions by HACC investigating judges to NABU detectives and SAPO prosecutors is becoming more widespread. In particular, this concerns the right to impose a ban on communication between suspects and certain persons — an indefinite circle of persons or the persons determined at the discretion of NABU detectives and/or SAPO prosecutors. This is despite the fact that the law (Article 194 of the CPC of Ukraine) attributes the right to determine the persons with whom the suspect is obliged to refrain from communicating to the exclusive competence of the investigating judge and the court. And the Constitution of Ukraine (Article 124) stipulates that delegation of court functions, as well as appropriation of these functions by other bodies or officials, is not allowed.
This behavior of the court is also manifested in another systemic problem — exorbitant bail. The HACC tries to keep corruption suspects in custody by setting bail hundreds of times higher than the maximum provided by the CPC. At the same time, the setting of exorbitant bail has no legitimate purpose. The purposes of bail should be to ensure the fulfillment of procedural obligations and to prevent obstruction of the investigation. In our circumstances, the purpose of exorbitant bail is to punish the suspect, to assist the investigating authorities and the prosecution in making the suspect enter into a plea bargain, and to artificially stimulate and satisfy public demand for repression. The imposition of exorbitant bail is a gross violation of the right to liberty and security of person guaranteed by Article 5 of the ECHR. At the moment, the ECtHR is considering numerous applications against Ukraine related to human rights violations by anti-corruption bodies. Some of them have already been communicated. In general, there is a tendency of excessive use of procedural coercion measures against suspects by anti-corruption agencies.
Another systemic problem is that the HACC does not properly examine the admissibility of evidence. At the pre-trial stage, it accepts evidence even if it is obviously inadmissible, including evidence obtained by the pre-trial investigation body in violation of the constitutional right of suspects to freedom from self-incrimination. The court also accepts low-quality expert opinions from the prosecution, written at the request of investigators, without conducting a thorough judicial analysis of the expert opinions.
The court’s decisions often distort the practice of the ECtHR. The court takes a quote “taken out of context” from the ECtHR judgment and relies on false statements, often contrary to the judgment itself in terms of content.
Excessive pressure on civil servants, lack of prevention in the activities of anti-corruption bodies and repressive bias, as well as selectivity of corruption cases cause the decline of the civil service and the reluctance of professionals to work in state institutions. Ukrainian business is also under pressure from anti-corruption agencies. Businessmen are accused of organizing schemes involving civil servants. At the same time, the schemes are often a chain of legal actions that, in the prosecution’s view, constitute a crime.
We believe that this practice harms the fight against corruption in Ukraine, violates fundamental principles of law guaranteed by the Constitution of Ukraine, the ECHR and other international agreements ratified by Ukraine, threatens human rights and fundamental freedoms, impedes Ukraine’s European and Euro-Atlantic integration and, as a result, destroys the anti-corruption system in Ukraine itself.
In order to preserve the anti-corruption system, improve it and ensure its functioning on a legal basis, we are ready to systematically monitor and analyze human rights violations by anti-corruption agencies, demand that pre-trial investigation bodies and courts eliminate these violations, conduct human rights education and training for HACC judges, NABU detectives and SAPO prosecutors, and conduct information campaigns to address systemic problems of anti-corruption agencies.
We have been and remain reliable partners of the new anti-corruption agencies, supporters of systematic and effective anti-corruption in Ukraine. At the same time, we cannot be indifferent observers of how these bodies are moving away from the rule of law and the principles of their activities defined by law, how they are gradually acquiring signs of repression. At the same time, we do not consider these problems to be so deep-rooted and long-standing that they cannot be successfully resolved. This requires understanding, a responsible approach and joint efforts.
NGO “Kharkiv Human Rights Protection Group”
NGO “Ukrainian Institute of Human Rights”
CO “Ukrainian Legal Aid Foundation”
Charitable organization “Human and Law”
NGO Center for Legal and Political Studies “SIM”
NGO “Protection of Prisoners of Ukraine”
CO “CF ”Social and Legal Development”
Kherson regional organization of the Committee of Voters of Ukraine
NGO “Helsinki Initiative-XXI”
Odesa regional organization of the NGO “Committee of Voters of Ukraine”
NGO “Sich Human Rights Group”
NGO “Magnolia”
NGO “Regional Center for Human Rights”
Information center “Maidan Monitoring”
Civic Platform New Country
Trade Union Ukrainian Independent Foundation of Lawyers
Section of lawyers and self-employed lawyers of the Ukrainian Bar Association
NGO “Mriya”
Viktor Shyshkin, retired judge of the Constitutional Court
Igor Slidenko, retired judge of the Constitutional Court
Valeriya Lutkovska, lawyer, Ukrainian Parliament Commissioner for Human Rights (2012-2018), Honored Lawyer of Ukraine
Anzhela Stryzhevska, Head of the Department of Criminal Law Policy and Criminal Law at the Institute of Law of Taras Shevchenko National University of Kyiv, Associate Professor, Honored Lawyer of Ukraine
Petro Boiko, Head of the Bar Council of Kyiv Region, Honored Lawyer of Ukraine
Semen Khanin, attorney at law
Tetiana Kozachenko, attorney at law
Denys Bugay, attorney at law
Rostyslav Kravets, attorney at law
Karl Volokh, public figure
Valeriy Pekar, public figure
Yuriy Hudymenko, public figure
Borys Zakharov, public figure
Iryna Honcharova, member of Kharkiv City Council
Yevhen Hrushovets, lawyer
Andriy Teteruk, civil society activist