Taming the Wary: How NABU Could End Up on the Government's Hook

Taming the Wary: How NABU Could End Up on the Government's Hook

Although the conflict between the government and NABU over the appointment of the bureau's auditor has been shelved, attempts to domesticate the unruly body have not ceased. Today the government has several cases that could not only inflict substantial damage on the National Anti-Corruption Bureau but also raise questions about the legitimacy of its work. Moreover, the bureau itself creates triggers for its own problems.

Why the government began investigating the so-called illegal eavesdropping by NABU, how the anti-corruption bureau lost two courts on the legality of its public council's appointment, and what this threatens for the detectives, why last week a lawyer stated the use of force by a NABU detective, and why there is trouble with high-profile cases at the bureau, was analyzed by INSIDER.

"I will listen to everyone", or taming the Chief.

20 September, Prosecutor General Yuriy Lutsenko accused the National Anti-Corruption Bureau of illegally tapping more than 140 government officials.

According to Lutsenko, the prosecutor's office has legal proof of illegal wiretaps.

"I have legal evidence that NABU, having obtained permission to wiretap 18 individuals, conducted wiretapping of more 140. These are people from the president of Ukraine's security detail and other officials from various branches of power," Lutsenko said.

The Prosecutor General also added that first results in this case are expected in a few months. NABU immediately denied the accusations, but the matter will not end with statements.

As is known, in the midst of the storm over the amber case, this tapping was already mentioned by People's Front deputy Maksym Polyakov. He also claimed that NABU taps the president's security and the mistresses of politicians.

After that, NABU head Artem Sytnyk said in an interview with INSIDER that it would be better if such deputy statements were commented on by a psychiatrist. Although he himself has not seen the case materials, the head of NABU acknowledged the existence of the proceeding.

In fact, in the GPU this case has been under investigation since January 2017. Deputies from the NF began talking about this after NABU detectives detained Mykola Martynenko in the party office.

They were not talking about the gray cardinal but because surveillance caught the party leader Arseniy Yatsenyuk.

As several deputies told the publication, after Easter Yatsenyuk's security stopped a car stalker and it allegedly contained NABU detectives. The story did not receive public coverage, but Yatsenyuk subsequently had an unpleasant conversation with the U.S. ambassador to Ukraine, Marie Yovanovitch.

Yatsenyuk's press secretary did not confirm or deny this information. Artem Sytnyk, in a conversation with INSIDER, denied the fact of surveillance of Yatsenyuk.

From what is known to date, INSIDER says the case is not about eavesdropping a phone per se, but about illegal location tracking. The fact NABU uses this is known from their own statements (mentioned in a material in Ukrainska Pravda referencing NABU sources regarding the detention of Roman Nasirov). Moreover, this data also exists in NABU's official reports to other law enforcement agencies.

In informal conversations, this 'tracking' was tied to NABU Deputy Head Hizer Ugla.

Hizo Uhlava. Photo by Censor

"This happened after we received a response from Georgia that he did not renounce their citizenship on the day of appointment. After that he stated that it was not Misha (Mikheil Saakashvili) but American," a high-ranking official told the publication.

But gaining the loyalty of one NABU head is not the only thing the government is working on.

Illegal Council and detectives out of law.

When NABU was created, to guarantee its independence, the law 'On the National Anti-Corruption Bureau' provided for the establishment of a structure to monitor NABU's transparency and legality—the Public Control Council.

Its powers are regulated by a presidential decree and a special provision. This document outlines two key points: first, the Council delegates two representatives to NABU's disciplinary commission, and second, it has the right to appoint up to three members to the selection commissions that recruit NABU staff.

Thus, with control over the Council, the Bureau's work can be blocked or at least significantly hindered. And this loophole was exploited. Note that the Council is elected for one year, and active attempts to influence its composition began in spring when the Bureau began to target top corrupt officials.

RPR Anti-Corruption Group Manager Oleksandr Lemenov 30 in May, a day before online voting for 15 Council members, published data on candidates. Many turned out to be closely affiliated with influential politicians, including aides to members of parliament.

On the eve of the contest another scandal erupted: a member of the previous Council, lawyer for 'Automaidan' Roman Masyelko, stated that Kyiv Administrative Court found his election illegal.

"The defendant (NABU), without having the authority, organized the competition, independently ordered and used the program 'Online Ranking Voting System' for conducting the ranking online vote," the court's statement said, noting that NABU's decision to announce results was canceled.

Interestingly, the claimant in this case was the business partner of another candidate for the Public Control Council—lawyer Oleksiy Shevchuk. He is known as a defender of suspects in high-profile NABU cases: the 'Onyshenko gas case,' MP Boryslav Rozenblat; he also stood by Roman Nasirov under the tent in Feofania when detectives arrived to detain him.

Despite the court's decision, 31 in May the online voting proceeded successfully again. The votes for 56 candidates for the Public Control Council were cast by over 17 thousand voters. Among 15, Shevchuk and his colleagues were not elected, but Maselko again made it to the Council and was elected its chairman at the first meeting.

In the summer, the parliament tried to appoint "our" NABU auditor, but neither side had enough votes for their favored candidate. At the same time, another front slowly mounted a campaign against the current Council with substantial arguments.

For example, one contest participant, Tetiana Vysotska, published logs showing suspicious peaks in voting frequency for a package of 15 candidates. It was this group that had previously been urged to vote by the 'Center against Corruption'.

Oleksiy Shevchuk 10 July stated that the voting was rigged because unknown people participated, including from the occupied territories.

"According to the protocol published, there are facts that voting occurred from Russian electronic mailboxes" Mail.Ru, "Yandex". There are grounds to believe, and this is officially known from protocol materials, that the voting occurred after 9.00, i.e., at a time when voting should have been closed; voting channels should have been shut," clarified the lawyer, noting that these facts will be brought to court.

NABU Public Council.

However NABU noted that independent observer from NGO 'Electronic Democracy' did not detect artificially inflated vote counts. The state's service for special communications and information protection ensured the protection of the voting process from external interference.

A court case concerning the legality of Maselko's appointment and the council in 2016 continued. 22 August, Kyiv Court of Appeal, presiding judge Babenko, rejected NABU's appeal against the Kyiv Administrative Court's decision that the voting was illegal.

As the head of the Council at NABU explained, the court found the elections illegal because the law did not provide for online ranking voting, although, in his words, it was explicitly stated by a presidential decree. The court also noted that during online voting the citizenship and residence of the voter were not verified.

The court also criticized NABU director Artem Sytnyk, saying that before voting he created a working group to organize the voting, exceeding his powers. The judge concluded that there is no term such as 'ranking online voting' in the legislation, so NABU's interpretation of voting conditions violated 19 Article of the Constitution.

NABU has not publicly highlighted the two court decisions, but in reality they could be catastrophic for the agency.

"In fact, the consequences of the decision are dire — now all Internet voting is illegal, and thus all NABU, which was elected by the Council, is illegal. There is already a suit to recognize the detectives as illegitimate, as Maselko explained to INSIDER."

The lawyer says NABU filed a cassation appeal and hopes it will be considered by the new Supreme Court. However, given the pace of judicial reform in parliament, it may not be launched. If changes to the codes are not adopted within the legally prescribed time, the competition to the Supreme Court will also be illegal.

And what about the high-profile cases?

In addition to the cases already listed, NABU may face problems due to investigations into high-profile cases. The anti-corruption bureau has targeted several political heavyweights, but progress in the cases is very slow.

The closest to a court trial for the essence is the so-called Roshenblat-Polyakov amber case. So far, the main technical delay is in decrypting the evidence.

If the famous film about agent Kateryna has an hour of screen time, only video evidence would fill sixty hours of recording that must be transferred to paper. The sound is not always perfect, so there are technical difficulties.

But the case is still planned to be transferred to court sometime closer to 15 October.

The Nasirov case was also planned to be handed to court in the fall. Now the suspect continues to get acquainted with the case materials. From 240 volumes he has read less than half, sometimes in 15 minutes he reads 3 volumes, and sometimes the process slows down.

In Martynenko's case, they have not even reached the stage of acquainting with materials. The investigation is still ongoing. Judging by all, the evidence NABU bragged about in Sytnyk's interview proved insufficient, because SAP prosecutors continue to work in Switzerland. Moreover, there is one unpleasant nuance for NABU. According to Ukrainian law it is a subject of international cooperation, but under international treaties it is not. Therefore Martynenko's lawyers can argue that the evidence was transmitted improperly.

Meanwhile, the lawyers of the 'gray cardinal' of the NF turned to troll NABU and last month appealed to NABU and SAP to close the criminal proceeding on the so-called 'Energoatom case,' where he appears.

The lawyers provided the relevant motion and results of an independent expert examination, which states that the economic benefit of Energoatom from contracts with the Czech company Skoda amounted to over 21 million hryvnias.

NABU and SAP rejected the appeal.

The case of the legendary 'amber book' in Ukraine has hardly progressed. The only suspect in it is the head of the Central Election Commission Mykhailo Okhendovsky, but the proceeding in his case is currently suspended because investigators cannot find sufficient proof of his guilt, including purchase of a house. The proceedings timelines are moving forward.

Because of procedural timing issues, NABU recently created problems for itself when a detective was accused of assaulting a lawyer. This concerns the conflict of NABU detective Pavlo Yershov, who handles the 'Yatsenyuk’s Wall' case, and lawyer Alina Samarets.

Last week the lawyer was asked to be a public defender, but the suspect had two of his own lawyers and refused her services. In fact, the lawyers simply did not appear and blocked handing of the suspicion, hence a public defender was needed. But nothing can be done — the refusal was formalized in writing. When Samaret showed this document to Yershov, he tore up the refusal, then tore off the lawyer's ID and stepped on it. Samarets had to forcefully obtain her badge, while the lawyer and the detective were dragged by prison staff.

Samarets filed a complaint against the detective under 4 articles. But so far the investigation of the episode is clearly slowed.

Although, evidently, this episode will be used against NABU.

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