Archive for November 16th, 2017

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A JIT system of governance – The SBI

November 16, 2017

On 2nd October and again on 8th November, the blog highlighted the impending deadline of 20th November for the Ukrainian governance machinery to adhere to its own laws or face a possible prosecution disaster relating to investigations into highly placed former or current officials for serious criminality that falls outside the remit of NABU – many cases relating to events surrounding the Revolution of Dignity/EuroMaidan for example.

In summary, on 12th November 2015, the Verkhovna Rada passed Law 2114 (with 241 MPs voting in favour) to create a State Bureau of Investigations.   The remit – “the identification, disclosure and investigation of crimes committed by high officials, judges and law enforcement officials.  Exception is made when the crimes of these persons are related to the investigative jurisdiction of the detectives of the National Anti-Corruption Bureau.”

In short, what doesn’t fall under the NABU terms of reference, will fall under the State Bureau of Investigation for all high officials of State.

The law was passed despite no agreement upon how the Chief of this organisation would be chosen.  Who decides, and who decides who decides, is always a significant issue – particularly in Ukraine.

It was later agreed that the President would appoint the Chief upon the proposal of the Prime Minister, after an open competition and the nomination of the commission tasked with assessing the candidates.  Naturally there is then the issue of who comprises the commission – again, who decides and who decides who decides?

Regardless, while investigations continued, a “transitional period” until 20th November 2017 was agreed while the bureaucratic process of creating a bureaucratic process began and ran its course..  Except that it hadn’t run its course by 2nd October per the first link above.  In fact the process had hardly begun almost 2 years after the relevant law was passed.

By 8th November, per the second link above, Prosecutor General Lutsenko began awoke and spoke out – to the point of saying it was now too late and the situation could not be remedied before the 20th November deadline.

High stakes considering some of those subject to investigation still retaining positions within the Ukrainian top echelons – as the names mentioned in the first link make clear.

On 16th November, the commission charged with selecting nominations for the top positions of the State Bureau of Investigations eventually made named the best candidates and forwarded those names to Prime Minister Groisman.

That nothing was done for 15 months and then task completed in a few days may infer to a reader that the competition was in fact a “competition” and that there was “political agreement” around the “winners”.

Whatever the case, Prime Minister Groisman now literally has only a number of hours to ponder and forward (or perhaps not) those names to President Poroshenko to appoint (if he is of a mind to do so) before 20th November per the law.

By unanimous decision of all 9 people upon the commission, Roman Tryb has been nominated as Director of the State Bureau of Investigation.

Mr Tryb is a prosecutor hailing from Lviv, where he worked from 1997 until 2014, at which point he became the Deputy Head of the Prosecutor General’s Office in the  Main Investigation Department (as well as head of the department for investigating especially important cases and deputy chief of the first investigation department).

In April 2015 he left and went into private law practice.

For the sake of accuracy, the commission also nominated Olga Varchenko for the post of First Deputy Director, and Alexander Buryak as Deputy Director.  It is perhaps not necessary that Ms Varchenko and Mr Buryak receive the Prime Minister’s and Presidential nod of approval before 20th November.

Quite what is envisaged as the SBI internal structure is unknown.  If Mr Tryb is not appointed by 20th November in accordance with the law, then the SBI won’t exist at all.

As Mr Tryb is an exercise in JIT (just in time) governance, then perhaps the internal structure, equipment and budget will only be sorted out as he is trying to find a chair to sit on and a desk to sit behind – it never pays to underestimate government incompetence.

Mr Tryb will also require a lot storage, for if Prosecutor General Lutsenko is to be believed, and if successfully appointed by 20th November, Mr Tryb can expect the delivery of over 7000 on-going and/or completed investigations.

If Mr Tryb is a wise man, the first thing he will want to do is review all of those cases and the quality of the investigations.  That will take time.  Will he have the staff and facilities to do that in a timely way?  At what point will the first investigations via the SBI reach a court of law?

Perhaps the entire JIT ethos surrounding the creation of the SBI has been all about deliberate delay (when considering those subjected to investigations)?

If it proves to be that the competition was indeed a “competition” as it appears prima facie, and thus the nominations are indeed “subject of a political agreement” then there can be no real faith in the SBI from day 1 – if there is to be a day 1.

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