- The anti-corruption vector was one of the priority directions of the legislative policy pursued by previous authorities and apparently new policymakers will follow this course. How do you assess one of “fresh” legislative ideas about introducing the institution of corruption whistleblowers?
First of all, I want to note the rapid development of anti-corruption legislation. And the law enforcement practice in the form of the National Agency on Corruption Prevention (NACP), National Anti-Corruption Bureau of Ukraine (NABU) and Specialized Anti-Corruption Prosecutor’s Office (SAPO) significantly influenced the development of the White-collar crime practice and, in fact, created from scratch in our market a promising business area – anti-corruption law. It may be segmented into three parts: counseling, implementation of anti-corruption policies and more narrowly – protection of clients’ interests in the event of accusation of any corruption activity.
Regarding the institution of corruption whistleblowers, or rather Whistle-blowing (this term is used by international community), it should be noted here that this is not a new practice in the world. Accordingly, if this works in the USA, then it may be implemented in Ukraine. We will see the results of such a way of struggle against corruption in our country over the next two years.
- How will the legal market react to a new type of advocacy activity – protecting the rights and interests of the individuals who have reported corruption or corruption-related offenses?
Whether legal support for whistleblowers in Ukraine will become a legal practice depends on whether the payments, as stated in the Law, will be actually made by state. Will these 10% be paid? I believe that as soon as there are real payments to the whistleblowers, there will immediately be a demand for professional assistance from lawyers. After all, only they may qualitatively support an informant in his/her actions to expose the facts of corruption and, at the same time, fix his/her right to remuneration.
- What is your prediction for criminal defense in general and White-Collar Crime practice, in particular: what new directions may appear in the light of the intention already announced by lawmakers to further reform criminal justice?
First, law enforcement pressure on business will remain at the same level or even grow. Confirmation of this fact is unfulfilled promises to eliminate tax police and Economic Crimes Department of the Security Service of Ukraine (SSU).
I do not believe in rapid creation of financial police. In the next two years, we will still see law enforcement officers with the words “Tax Militia” in the offices of respectable companies. There will be a lot of work in this direction.
Second is to strengthen the anti-corruption infrastructure of NABU and SAPO, improve their regulatory and technical capabilities, and intensify the efforts of the Supreme Anti-Corruption Court which will be a key trend in the White-Collar Crime practice in the coming years. We will see dozens of sentences, including not-guilty verdicts. It is the practical activity of the Anti-Corruption Court that will be one of the key factors and will affect the formation of practice over the next 5-10 years.
The third point consists in the fact that the return of Article on illicit enrichment in conjunction with the advent of a large number of new politicians and ministers will give a huge field for the work of NABU and SAPO. After the first declaration period, we will see dozens, if not hundreds, of new criminal proceedings. I suppose that new faces will be absolutely negligent in filling out their declarations. And, as a result, we will see new criminal proceedings, suspects and courts.
If we talk about the future in business sector, then such a sub-direction of White-collar crime as Investigations is gaining popularity every day. More and more companies are ready to conduct corporate investigations in order to identify internal and external fraudsters.
- The idea of expanding such tools for NABU and SAPO as so-called “wiretap” law was perceived quite ambiguously. How did business react to innovations regarding covert investigative activities? Are there any fears that in practice such tools will be abused, using them for “crackdown” on political or business opponents?
70% of the individuals involved in NABU/SAPO investigations are not the category A officials. These are the business and management of corporate structures that are somehow related to government money. It has already come to understand that the NABU investigations concern not only politically exposed person (pep), but also the business that worked with the state.
Accordingly, a significant expansion of the technical capabilities of NABU in terms of removing information from communication channels will increase effectiveness of investigations. First of all, it will definitely allow collecting much more operational information, and the key is that they will be the sole owners of this information.
I repeat – effectiveness will increase, the volume of information, received as a source for investigations, will increase several times. Regarding potentially illegal use – let’s remember that NABU is not the D’Artagnans who came to us from the pages of the science fiction novel. They are all former employees of the prosecutor’s office and police who “grew up” and were brought up in the culture that is still present in the current law enforcement system of Ukraine. And there are no guarantees that they will not allow abuses in respect of “wiretapping” as the existing prosecutor’s office, police or SSU.
- Effectiveness of fight against corruption, a phenomenon that still remains one of the risk factors for foreign investors, was identified by a lot of people with the launch of the Supreme Anti-Corruption Court (SACC). And what hopes does the professional legal community have on the SACC?
I want to note that for an investor it matters not so much the anti-corruption index as the right to a fair trial and rule of law.
If we talk about the Supreme Anti-Corruption Court, let’s start with the fact that the implementation of this tool was absolutely ambiguous, caused serious disputes in legal community. There are the elements which may indicate that this is a “special court”, which is actually prohibited by the Constitution of Ukraine. However, the Law was adopted, institution was created and began its work and all discussions on this subject should be stopped accordingly.
The first thing which should be noted is that the colleagues, who were elected the judges and those who were responsible for the organization of work, quickly and efficiently managed as it pertains to organizational issues. The above Court is fully operational.
Secondly, judges demonstrate a fairly high pace of considering cases, try to comply with deadlines. Our first impression of the meetings (we have already held more than 20 meetings there) is quite positive. The fact that judges are trying to hear lawyers, allow enough time to those to set out their position and exercise professional rights in the interests of our clients is encouraging.
But all the time I still cannot say that the court is fully prepared to be an independent arbitrator. Of course, we are pleased with the public statements of judges that they consider their work and court as an independent element, and that they are not ready to be the “third link” in the system of anti-corruption bodies. Let’s wait for the first ten sentences, after which we can make subsequent conclusions.
- It has been possible to build in recent years in Ukraine not only a separate infrastructure of anti-corruption bodies, but a whole judicial vertical – SACC as the court of first and second instance, and the Third Trial Chamber of the Cassation Criminal Court as part of the Supreme Court (SC), which will review the cases of SACC. Your vision: is this specialization necessary for “supreme” judges, and how can the reduction in the number of judges of the Supreme Court affect the quality of criminal proceedings in general?
Regarding the first part of question – specialization in anti-corruption crimes in the Supreme Court – such a Chamber should definitely be. We are already fixing it, a whole series of fundamental questions arise during the trial regarding the implementation of anti-corruption Articles of the Criminal Code.
First of all, this is due to the novelty of these Articles which are investigated by the NABU – failure to declare, illicit enrichment. Answers to these conceptual questions related to enforcement may only be provided by the judicial practice of the highest instance. An example, an issue of the interpretation of criminal intent of “failure to declare”, what is it expressed in, where is the border between an intent and negligence? Only the Supreme Court will be able to put an end to these issues, taking into account the opinions of leading academic lawyers.
Answering the second part of question, I believe that the reduction of judges will negatively affect both the quality of the work of the Supreme Court and number of cases reviewed. The new Supreme Court demonstrates modern standards of justice both in form and in substance. It clearly adheres to its own positions, and the discussions, which are being conducted around various cases, show the depth of elaboration of a particular issue.
I am categorically against reduction. My guess is that such a reduction is a restriction of the right of citizens and legal entities in access to justice.
Author: Denys Bugay, attorney-at-law, partner of VB Partners, president of the Ukrainian Bar Association
