Nasirov and the UK Bribery Act 2010March 11, 2017
It has been a week since the last entry relating to the arrest and detention of Roman Nasirov, (suspended) Head of the Ukrainian State Fiscal Service.
A few days hence his appeal to have detention replaced by something less restrictive occurs, and no doubt those within the Ukrainian political and business elite who conspired to have him walk before a judge could be found to remand him will be busying themselves attempting to create an opportunity for him to be released on bail/electronic tag/house arrest etc from whence he can disappear.
Few from such circles would relish the thought of Mr Nasirov’s tongue loosening in search of a plea bargain.
Equally, as Mr Nasirov’s incarceration was the result of the constituency and civil society out maneuvering a conspiratorial elite, a reader can expect nothing but his continued detention will pacify them – and NABU who arrested him and consider him a flight risk – quite rightly.
However, theoretically it is not only Ukraine that can take a pound of Nasirov flesh.
Unconstitutionally, and also in violation of the Ukrainian Civil Service Law, Mr Nasirov holds the citizenship of other nations. One being Hungary and the other the United Kingdom.
Putting Hungarian citizenship to one side, a reader may ponder just how Mr Nasirov is a UK Citizen?
Grandfather rights? Is there a Grandfather or Grandmother in his family tree that was British thus affording him the opportunity to hold UK citizenship? At the time of writing it appears not from all available OSINT (including his e-declaration).
Has he provided some form of spectacularly beneficial assistance to certain UK agencies that, as part of any arrangement, resulted in UK citizenship? Unlikely in the extreme – in fact it’s even less likely than that!
What seems more likely is that he bought his UK citizenship as many from this part of the world that can afford it do. It is not a swift or cheap process, but the UK takes a certain pride in the quality of thieves and money launderers it gives citizenship to. Regardless, buying UK citizenship can be done if you are rich enough.
Naturally if Mr Nasirov took this route then questions are to be asked where such wealth came from to facilitate the purchase of UK citizenship.
To be clear, the above links relate to the current rules that took effect from 2014 – Mr Nasirov has a UK passport (passport number 5084080) issued in May 2012, so slightly different rules will have then applied.
To avoid any doubt the UK has promptly and officially confirmed Mr Nasirov holds UK citizenship to the Ukrainian agencies.
Thus regardless of whether Mr Nasirov ever gets convicted – or not, his tenure in his role cannot continue under the laws of Ukraine due to his holding other citizenships.
Cynically, a reader may ponder whether Mr Nasirov has requested consular assistance from the UK since his detention, and further, whether the UK was a potential direction of flight should he be given the opportunity to (try) and evade justice.
Yet Mr Nasirov’s UK citizenship, if the UK had a mind to set an example for those that buy it, also comes with the legislative baggage of being a UK citizen – and unfortunately for Mr Nasirov that includes the UK Bribery Act 2010.
The UK Bribery Act is one of those rare British laws that extends beyond the territory of the UK but travels with the citizen. Thus any acts of bribery, giving or receiving, be the reward financial or in another form, in which Mr Nasirov is complicit in Ukraine (or elsewhere), is also criminal offence in the UK for which he can be dealt with there.
Having had numerous private discussion with diplomats when Mr Nasirov’s shenanigans have been mentioned, that he has fallen foul of the Bribery Act has a very high probability. Rather than simply link to the statue, a link to the statute with explanatory notes is perhaps better – some key points below:
Offences relating to being bribed
(1)A person (“R”) is guilty of an offence if any of the following cases applies.
(2)Case 3 is where R requests, agrees to receive or accepts a financial or other advantage intending that, in consequence, a relevant function or activity should be performed improperly (whether by R or another person).
(3)Case 4 is where—
(a)R requests, agrees to receive or accepts a financial or other advantage, and
(b)the request, agreement or acceptance itself constitutes the improper performance by R of a relevant function or activity.
(4)Case 5 is where R requests, agrees to receive or accepts a financial or other advantage as a reward for the improper performance (whether by R or another person) of a relevant function or activity.
(5)Case 6 is where, in anticipation of or in consequence of R requesting, agreeing to receive or accepting a financial or other advantage, a relevant function or activity is performed improperly—
(a)by R, or
(b)by another person at R’s request or with R’s assent or acquiescence.
(6)In cases 3 to 6 it does not matter—
(a)whether R requests, agrees to receive or accepts (or is to request, agree to receive or accept) the advantage directly or through a third party,
(b)whether the advantage is (or is to be) for the benefit of R or another person.
(7)In cases 4 to 6 it does not matter whether R knows or believes that the performance of the function or activity is improper.
(8)In case 6, where a person other than R is performing the function or activity, it also does not matter whether that person knows or believes that the performance of the function or activity is improper.
And to be clear about legislative jurisdiction:
Function or activity to which bribe relates
(1)For the purposes of this Act a function or activity is a relevant function or activity if—
(a)it falls within subsection (2), and
(b)meets one or more of conditions A to C.
(2)The following functions and activities fall within this subsection—
(a)any function of a public nature,
(b)any activity connected with a business,
(c)any activity performed in the course of a person’s employment,
(d)any activity performed by or on behalf of a body of persons (whether corporate or unincorporate).
(3)Condition A is that a person performing the function or activity is expected to perform it in good faith.
(4)Condition B is that a person performing the function or activity is expected to perform it impartially.
(5)Condition C is that a person performing the function or activity is in a position of trust by virtue of performing it.
(6)A function or activity is a relevant function or activity even if it—
(a)has no connection with the United Kingdom, and
(b)is performed in a country or territory outside the United Kingdom.
(7)In this section “business” includes trade or profession.
Technically and by the letter of the law Mr Nasirov, UK citizen, should rightly be under investigation in the UK – and while there is no difference between theft of a $1 Mars Bar and theft of $2 million as theft is still theft, the financial gravity of Mr Nasirov’s nefariousness naturally magnifies perceptions of a need to take determined action.
So will the UK apply its own Bribery Act to one of its citizens who prima facie, and as undoubtedly outlined in numerous communiques from UK Embassy Kyiv to FCO King Charles Street (as well as other agency reports) , will have fallen foul (more than once and resulting in significant consequences) of the Bribery Act 2010?
Naturally Ukraine should be given first bite at the Nasirov cherry – yet few expect Ukraine to actually manage to get the case (at least with Mr Nasirov in attendance) to a verdict and sentencing. His disappearance if released and a trial in absentia (if the case got that far) is more probable when considering that nobody of senior position goes to jail under President Poroshenko.
The question therefore is whether the UK should begin its own investigation of crimes committed under its own legislation in support of the Ukrainian people? If it did so then it may psychologically cause a rethink regarding any sanctuary in Europe that may be circulating within Mr Nasirov’s head. The UK doesn’t raise many EAWs – but is almost certain to be effectively executed when it does making Europe somewhat less attractive to hide in.
One wonders after numerous hours spent with UK diplomats over the years, notwithstanding a sprinkling of UK politicians and an occasional Lord all ruminating upon what can be done to aid Ukraine in its fight against corruption if this option will be pursued. Itt’s not often they will get the chance to look at one of Ukraine’s most powerful office holders under due process of UK legislation.
The question is will they do it, or will the UK consider it a possible politically expedient exit for some very unwilling Ukrainian elites in this case?