Does the State Bureau of Investigation Need More Authority: New Draft Law

Does the State Bureau of Investigation Need More Authority: New Draft Law

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3 October 2023

After the Revolution of Dignity in Ukraine, a series of new anti-corruption agencies were established, including the National Anti-Corruption Bureau (NABU), the Specialized Anti-Corruption Prosecutor’s Office (SAPO), the National Agency on Corruption Prevention (NACP), the High Anti-Corruption Court (HACC), and the State Bureau of Investigation (SBI). The authorities make periodic adjustments to the work of these anti-corruption agencies, driven at times by public demands, Ukraine’s international partners, or their own initiatives. The latest example is draft law No. 9457, proposing changes to anti-corruption legislation.

The draft law proposes granting the State Bureau of Investigation (SBI) additional powers by including it among the specially authorized entities in the field of anti-corruption. It also suggests amending the list of entities governed by the Anti-Corruption Prevention Law, expanding the authority of the National Agency on Corruption Prevention (NACP), and extending the list of individuals ineligible for membership in the Public Council at NACP.

(1) Including the State Bureau of Investigation among the anti-corruption agencies. According to the current legislation, both NABU and SBI have the authority to investigate corruption crimes involving high-ranking officials, including members of Parliament, ministers, and judges. Therefore, adding SBI to the list of anti-corruption agencies recognizes its role in combating corruption.

However, this initiative also carries potential risks. Under certain political conditions, SBI could be used as a tool for pressuring and controlling other anti-corruption agencies, jeopardizing their independence. 

In our opinion, this can be avoided by: 

  • Improving the procedure for forming the composition of the competition commission for selecting the SBI Director, including specifying clear criteria and requirements for candidates from the public in terms of their independence and professionalism; introducing a transparent selection process for commission members from the public through a public competition; increasing the quota for independent representatives from the public; It is also advisable to provide for mandatory consultations with the public regarding the composition of the commission and allow public representatives to express their assessment of the candidates. This will contribute to the formation of a professional and independent competition commission.
  • Seeking approval of the Director of SBI not only from the President but also from the Verkhovna Rada. This may not work as a preventive measure when both the majority in Parliament and the President represent the same political force. However, for Ukraine, the situation of “mono-majority” is atypical, so in the future, this may balance the influence of different branches of power.

In other countries, there are instances where the heads of anti-corruption agencies are appointed not only by the President. For example, when creating the National Anti-Corruption Directorate of Romania (DNA), the appointment of the Director was not only the prerogative of the President but also involved the Superior Council of Magistracy, a body of judicial self-governance. This ensured a balance of political influences. In Latvia, the Corruption Prevention and Combating Bureau (KNAB) is led by a collegial body consisting of representatives from the President, the government, and Parliament. In Estonia, public oversight of anti-corruption activities is mainly carried out through the Anti-Corruption Select Committee of the country’s Parliament, composed of Riigikogu members.

  • The powers of the Public Oversight Boards at NABU and SBI largely overlap, especially regarding the review of reports from these agencies and the participation of representatives of the public in their disciplinary committees. However, unlike the SBI Public Oversight Board, the NABU Oversight Board has the authority to initiate the dismissal of the Director of the respective agency. Therefore, it would be appropriate to borrow positive elements from the experience of forming the NABU Oversight Board and apply them to improve the procedure for forming the SBI Oversight Board. This would enhance SBI’s independence and its accountability to the public.

(2) The draft law clarifies the list of subjects to which the “Law on Corruption Prevention” applies

The list of individuals subject to full declaration checks by NACP includes top officials in the government and law enforcement agencies. This encompasses the President, Prime Minister, government members, MPs, heads of central executive authorities, judges, prosecutors, heads of anti-corruption agencies, local government officials from the city level, and senior military officials.

The proposed law project suggests adding to this list the Chairman of the National Commission for State Regulation of Energy and Utilities (NCSREU), the Chairman and State Commissioners of the Antimonopoly Committee of Ukraine (AMCU), the SBI head, their deputies, as well as investigators and detectives from NABU and the Bureau of Economic Security (BES). These changes would enable NACP to conduct more thorough checks of declarations for key officials in the energy sector and law enforcement agencies. 

At the same time, the draft law proposes to exclude from the list of individuals required to submit declarations the First Deputy Head of the Presidential Office, advisors, and assistants to the President and Prime Minister. This action is counterproductive because it would limit NACP’s control over individuals who influence the decisions of the highest-ranking officials in the state.

If adopted, the bill would also exempt personnel of the ordinary and junior management ranks of the State Criminal Executive Service and junior management ranks of civil defense agencies from the obligation to submit annual declarations. On the one hand, this is a good proposal, as these individuals often include non-managerial staff such as drivers, machine operators, and electricians in the State Emergency Service (SES) whose work is not directly related to corruption risks. On the other hand, this proposal may require further refinement, as there is no information in the explanatory note or public access regarding statistics on corrupt offenses committed by such personnel.

The draft law also proposes exempting jurors from the obligation to declare their assets, aiming to reduce administrative pressure on them and make this position more attractive. However, since jurors perform duties similar to judges, appropriate anti-corruption restrictions and requirements should apply to them. This is necessary to ensure impartiality in the adjudication of judicial cases and to prevent corruption risks. Excluding jurors from the list of declaration subjects may not be a justified relaxation of anti-corruption legislation. This proposal should also be carefully reviewed or substantiated.

(3) Another proposed innovation concerns granting NACP the function of identifying instances of illegal enrichment and unjustified acquisition of assets. The explanatory note for the draft law lacks justification for this proposal. It could potentially create a conflict of interest, as these powers are already vested in law enforcement agencies, including NABU and SBI. The Chief Scientific and Expert Department of the Verkhovna Rada rightly points out that equipping NACP with additional law enforcement functions may be inappropriate, as its primary role is in formulating anti-corruption policies. Therefore, we do not recommend adopting such a provision.

(4) Additionally, the draft law proposes transferring the functions of mandatory anti-corruption expertise of draft legislation currently performed by the Ministry of Justice to NACP, as well as reviewing all bills submitted by MPs. NACP presently has the discretion to assess any draft legislation for the presence of corruption risks.

Granting NACP additional functions for checking declarations, especially for reviewing draft legislative acts, will require a significant increase in NACP’s resources because, on average, around 2,000 bills are registered in the Ukrainian Parliament each year (several dozen per week). Without an increase in resources, NACP may struggle to handle the workload related to these legislative projects. However, the explanatory note for the draft law traditionally does not provide for additional budgetary expenditures to implement these changes. Therefore, this proposal should be reconsidered.

(5) The legal draft proposes to increase the requirements for individuals who will be members of the Public Council at NACP. Thus, a person will not be able to become a member of the Public Council if they: 

  • have been declared legally incapacitated or have limited legal capacity by a court decision;
  • have an outstanding criminal conviction for committing a criminal offense;
  • have been subject to criminal liability for a corruption-related violation or have faced administrative penalties for corruption-related actions within the last year;
  • have been deprived by a court decision of the right to hold positions or engage in activities related to the functions of the state;
  • (within two years prior to applying to participate in the competition) have been a part of a political party’s governing or oversight bodies or in an employment relationship with a political party.

These restrictions will help attract politically unaffiliated individuals and those with impeccable reputations to the Public Council. In turn, this can enhance the credibility and level of trust in the Public Council’s activities.

The proposed legislation contains both positive innovations and points of debate. One debated aspect is the proposal to exclude the First Deputy Head of the Presidential Office, presidential advisors and assistants, and jurors from the list of individuals required to submit declarations. We do not recommend doing this, as their activities are associated with high corruption risks. However, we support adding the NCSREU Chairman, the AMCU Chairman, state commissioners, the SBI head, their deputies, and investigators, and detectives from NABU and BES to the list of individuals required to submit declarations. Additional restrictions on eligibility for membership in the Public Council at NACP also appear to be justified.

The draft law’s authors propose empowering NACP to identify instances of illegal enrichment and unjustified asset acquisition. We believe this duplicates the responsibilities of other anti-corruption agencies, such as SBI and NABU, making it unnecessary. The proposal to require NACP to assess all draft legislative acts for corruption risks seems unrealistic without a significant increase in its resources.

Ukraine still has a lot of work to do in the field of anti-corruption, as evidenced by public sentiment and signals from international partners. For instance, the White House recently sent a letter outlining its expectations for Ukrainian reforms, with a strong emphasis on anti-corruption measures. However, when implementing changes in this area, it is crucial to consider practical aspects, such as the possibility of conflicts arising between government agencies due to overlapping responsibilities and whether the relevant bodies have sufficient resources to carry out their assigned functions. 

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