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The Prosecutor General verses NABU (again)

September 21, 2017

Once again it appears that Prosecutor General Lutsenko and the National Anti-Corruption Bureau of Ukraine are in public conflict.

It is not the first time, and it will not be the last as long as the nation’s leadership cannot find the integrity required to allow for genuinely independent institutions.

To be blunt, looking at those currently in power, and those that will run for presidential office, there are few brave enough to remove their influence over the prosecutors or the judiciary.

Indeed looking at the potential presidential candidates with a reasonable chance to make it to a second round of voting, President Poroshenko represents either political stagnation, or, if he decides to go down in Ukrainian history as a Statesmen rather than just another politician, a second term that will see vested interests (both his own and those of his circle) kicked to the curb and the interests of the nation firmly put first.  (While political stagnation is certainly more likely, there is also an attraction to enter history as a Statesman in a final term of office and that international speaking circuit.)

Yulia Tymoshenko simply represents political disaster.

Slava Vakarchuk, having recently met with “his people”, represents chaos (unless they swiftly get their act together) and will probably be eaten alive by the current political and business class very quickly should he win.

Dear World – Apologies several years in advance of the next elections – regardless of the outcome.  Be assured that while the political class is feckless, the business class criminal, the country and its people are strong  – Sincerely, Ukraine.

Nevertheless, pre-election electioneering is under way.  President Poroshenko has to reverse a few percentage points in the polls.  He would be the first Ukrainian president ever to achieve such a polling reversal.  Thus he must either deliver high profile developments at home or alternatively employ the State apparatus to his benefit – or both.

As such, prosecutions, judicial verdicts, and the media landscape form part of the mosaic of reelection no differently to issues such as reforming the current electoral laws, establishing an anti-corruption court, successful bond issues (negating the IMF reliance), public broadcasting financing, etc., etc.

Like many reforms, the political class have accepted many of them begrudgingly – particularly those that shine a light into the lives of the politicians, judiciary and civil service.  E-declarations, NABU and the anti-corruption prosecutor are suffered and endured while simultaneously sabotage or attempts at such are made to mitigate their unwanted intrusion.

Yuri Lutsenko, the Ukrainian Prosecutor General, for whom the law had to be changed specifically to facilitate his appointment, was, is and always will be a politician.  Loyalty before ability is the code of the Bankova/Presidential Administration.  Thus laws were changed to insert a man as Prosecutor General sufficiently loyal to President Poroshenko, and a time served political grey cardinal capable of overseeing politically sensitive investigations and/or prosecutions to arrive at the “right outcome”.

From the moment of his appointment there has been friction between NABU and the Attorney General (and the man behind him).  Thus far Mr Lutsenko has failed to gain (the politically desired) control over NABU.  Many public and unnecessary spats between the Prosecutor’s Office and NABU have resulted.

There was indeed a national state of shock, applauded by the public and appalling the elites, when Roman Nasirov was taken down by NABU.  The dangers of independent institutions put into sharp relief among the ruling class.  The UK was swift to pour a little more fuel on the Nasirov fire by revealing that Mr Nasirov also held UK citizenship, releasing the details of his UK passport.  President Poroshenko is yet to strip Mr Nasirov of his Ukrainian citizenship, though he was swift to remove that of former MP Artemenko and also Misha Saakashvili (leaving the latter stateless, seemingly contrary to the Ukrainian Constitution and ratified international Ukrainian obligations).

The Ukrainian political elite have failed to abide by their own legislation with regard to appointing an external (international) auditor for NABU – an audit long overdue – through failure to agree upon the identity of auditors.  Unsurprisingly, the scope of any such audit, even if auditors be appointed, is also ill-defined within the legislation.

There is a huge bottleneck of anti-corruption cases at the courts – which remain unreformed, and as previously written the reform of the Supreme Court is a farce.   With political control remaining after the judicial reform, it is unsurprisingly that the President would prefer an “anti-corruption chamber” within a court system very much open to political interference even after “reform”.  However kicking the anti-corruption court into the long grass was clearly policy long before now – and became self-evident in July.

Nevertheless many EU nations, the US, reform orientated politicians, and NABU, all call for an independent anti-corruption court – which following the example of NABU clearly cannot be allowed to come to pass if preordained, politically expedient rulings are to be delivered for specific cases.  An anti-corruption chamber created within in existing courts, comprised of existing judges however, facilitates exactly that outcome when the need arises.

There is, at a time of pre-election electioneering, a perceived requirement to begin to get a grip upon the State apparatus, and push the presidential line as levers of external influence (the IMF etc) are no longer desperately required.

The idea of an anti-corruption court, (as opposed to an anti-corruption chamber), must be discredited.  Therefore the idea that an independent NABU has brought results must also be discredited – despite the fact that it is not NABU that delivers a verdict or has any control over the speed at which judicial wheels turn.

One of the main IMF, EU, US, Canadian, and NABU requirements has been the ability, and legislative authority to conduct its own wiretaps.  Currently only the SBU has the means and lawful authority to conduct wiretaps.  This has meant that NABU since its inception has been entirely reliant upon the SBU for such evidence gathering.

The process being that NABU receive a warrant for a wiretap from an investigative judge, and then the SBU carries out the wiretap and provides NABU with the results.  Far from ideal for any investigative body to rely upon a politically appeasing SBU for evidence against the political, judicial and civil service classes.  Investigative integrity is surely at risk and stands a very real chance of being compromised.

Naturally there is almost no political support within the political elite to allow an independent NABU such power – particularly having nobbled Mr Nasirov to the genuine surprise of all.

Needless to say granting NABU the wiretapping ability has been a major issue for those that support an independent NABU – and hence it became an IMF requirement as well as an on-going diplomatic issue for many western embassies in Kyiv.  There has been much blunt comment and prickly public diplomacy over this issue.

Eyebrows will therefore have been raised when Prosecutor General Lutensko allowed his Press Secretary to release a statement relating to the illegal wiretapping of 114 telephones belonging to Cabinet members, judges, civil servants, the presidential body guards, National Police, SBU, and the Ukrainian Foreign Intelligence Service – plus a few others – during 2016 by NABU.  The Prosecutor General making similar claims himself on 20th September.

Clearly there are questions to be asked and answers to be given – for either the Prosecutor General is spouting spurious nonsense for political reasons, or NABU has gone far beyond the existing legal boundaries within which it operates.

What would NABU have to gain by illegal wire taps, beyond intelligence that could not be converted into evidence in a court of law?  Without a warrant and lawful collection, there is no evidence that can be presented in a court from a wiretap.

NABU itself, or at the very least operatives within, would end up in court.  Indeed, according to Yuri Lutsenko’s Press Secretary, “The Prosecutor General’s Office of Ukraine conducts a pre-trial investigation in criminal proceedings on grounds of criminal offenses, stipulated by Articles 365, 366 of the Criminal Code of Ukraine,”  Apparently it will be a few months before anything comes of this investigation into NABU.

Where did NABU acquire the wiretapping hardware – and the expertise to operate it?

If they desperately required illicit tapping of these telephones for intelligence and not evidence value, could not those foreign powers that listen in on Ukrainian officials have unofficially and deniably assisted in certain cases in an effort to prevent NABU transgressing domestic legislation?

Over what time period were each of the alleged 114 telephones tapped, and does NABU have the staff to deal with all those intercepts as well as continue other investigations?

Are there none within NABU who would not have blown the whistle during this time – even if to the diplomats of supportive nations to then “have a word” with NABU leadership?

There are questions also of when, exactly, the Prosecutor General (and office) became aware of the 2016 wiretapping?

Without doubt it is not necessary, or perhaps even wise, to bust such alleged criminality immediately.

The collection of evidence of illegal wiretapping however, would not require, nor justify its preventative action, for a particularly long period – especially when both institutions are battling against each other to preserve their authority.  To prove systematic illegal wiretapping does not require allowing 114 telephones to be illegally tapped.  After a certain (and a fairly low number 6 – 10 instances) there is no evidence value to be gained by allowing it to continue.    At some point, becoming complicit is a legitimate issue.

Does a reader believe that somebody such as Yuri Lutsenko could sit upon, and not action, such information when trying to assert his authority (and The Bankova influence) over NABU if he had become aware in 2016?

As many readers will not believe he could sit on such a revelation for long, and assuming he is not simply making spurious allegations for political purposes, at what point did AG Lutsenko become aware, and what evidence was presented to warrant such public claims now?

The question of why now is important as President Poroshenko dismisses the idea of anti-corruption courts and promises to bring in (already compromised) anti-corruption chambers within a month.

Is it the case that these wiretaps were conducted legally, and via the SBU, however Yuri Lutesnko is being more than a little disingenuous?  For every telephone conversation there are (normally) two people and two telephones.  Thus any wiretap captures those under investigation and also thus who are (probably) not.  Ergo it maybe the “illegal wiretaps” are actually incidental collection from lawful intercepts, being deliberately misrepresented for immediate political expediencies.

Is a deliberate and perhaps baseless besmirching of NABU simply part of a framing to introduce a flawed anti-corruption chamber?  An unwise attempt at creating anti-corruption equivalency in the court of public opinion?

If such illegal wiretapping had occurred and on the scale Yuri Lutsenko claims, would such criminality have come to light during a NABU Audit?  (The auditors of which the political class simply cannot bring themselves to appoint and therefore there is no accountability – either external or horizontal.)

NABU have naturally completely denied the accusations of AG Lutsenko.

It will be interesting to see how this develops, and ultimately how it will be resolved.

In the meantime, anticipate the arrival of Anti-Corruption Chambers that can be subjected to political influence, and don’t hold your breath for NABU to get an independent wiretapping ability before the elections – or perhaps afterward either.

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