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NABU – Partnerships, potential suspects and results

May 11, 2016

The 11th May saw a Memorandum of Understanding signed between the National Anti-Corruption Bureau of Ukraine (NABU) and the Consultative EU Mission for Civil Security Sector Reforms in Ukraine.

The intent behind the signing of the MoU is to increase the depth of cooperation in implementing anti-corruption reforms in Ukraine.

The MoU, as inferred by the declared goals, therefore facilitates external funding (as provided for by the Law of the Anti-Corruption Bureau of Ukraine) and appears to concentrate upon altogether rather sensible issues – such as enhanced and continued training, internal management and control, and facilitating on-site, modern interview rooms.

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The MoU also provides for a permanent on-site office for the EU Advisory Mission within the NABU building.  Whether or not that office will be permanently staffed or simply used for regular “drop-ins”/scheduled meetings to discuss implementation benchmarks (whatever those benchmarks may be) is presumably a matter for the EU Mission leadership.  It would seem rather foolish not to place a few staff members in the building permanently now the opportunity presents itself – for numerous obvious and not so obvious reasons.

By the very nature of NABU investigations, they are not going to be quick.

Even the most simple of investigations are likely to take many months.  Some will take years.  Not all investigations will lead to sufficient evidence pointing to guilt beyond reasonable doubt to present before a court of law.

That investigative time cannot be reallocated, yet neither are any investigations that fall short of a reasonable chance for successful prosecution necessarily wasted.

However, there will be, and there are, expectations both domestic and externally of Ukraine regarding NABU bringing (successful) prosecutions.  All will be expecting several prosecutions to reach a courtroom before the end of 2016, even if those prosecutions be those that are the least complicated (and thus swift to complete).

It remains to be seen whether the judiciary will have been reformed by the time many such cases begin to reach a court fairly frequently – but it is not for NABU to find guilt, simply to present a strong prosecution case with a good chance of a conviction.

There seems little point in taking a case to court that the NABU personnel themselves would estimate of having a 50% – 60% chance of conviction based upon the evidence that they have gathered.  Considering the current judicial prevailing headwinds, perhaps only cases deemed to have a minimum 70% chance of conviction should actually reach a courtroom – at least until NABU gathers a reputation for a reasonable success rate and/or the judiciary find some form of institutional integrity.  The latter will not happen particularly swiftly looking at the proposed strategy to reform the judiciary and the tinkering with what there currently is.  (It is worth considering building a new parallel structure that can replace what currently exists on “X date”.)

It thus falls to NABU to look to prosecute cases of the strongest of evidence, with evidence chains of the uppermost integrity, and all statutory defences covered.  Perhaps some may argue a 70% chance of successful prosecution in the current climate is too low when an institutional reputation for success has to be built, however this blog would argue it is sufficiently high and any higher would eliminate justice being done on behalf of the public in far too many cases.  It would seem a reasonable position – for now.

The scope of individuals that fall under the NABU terms of reference (Article 216 Criminal Procedural Code of Ukraine) provides that their potential suspects are all rather slippery and will be at the very least reasonably careful in conducting their misdeeds.  In fact, with the entering into force of the Civil Service Law on 1st May, that potentially criminal catchment area grew by another 500 – 600 people as Categories A and B civil servants became clearly defined.  Both of these top tier categories fall within the NABU remit.

In total there are now more than 22,000 politicians, senior civil servants, all judges, SOE CEOs and top uniformed personnel subject to potential NABU investigation.

A cynical reader will no doubt suggest that NABU is therefore understaffed when the perception internally and externally of Ukraine is that almost all that fall within their remit have misdeeds to hide – either past or present – or both.

It will therefore be a question of what the internal NABU criteria is that prioritises their investigations.

Clearly external support for NABU remains high – albeit undoubtedly less so among the Ukrainian elite who now fall within the NABU terms of reference.   Nevertheless, time and tide wait for no man, and a reasonable person, including external supporters, would expected to see a fairly steady trickle of NABU cases begin to appear before the courts during the Autumn – no matter how poor those courts will be.

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