Eurointegrators: Interview with Artem Sytnyk and Volodymyr Petrakovsky (30.09.19)

In this episode, the guests are Artem Sytnyk, Head of the Anti-Corruption Bureau of Ukraine, and Volodymyr Petrakovsky – Ukraine’s former Prosecutor General.

Popova: Hello, presenting a new episode of the “Eurointegrators” program. My guests today are: Artem Sytnyk – Head of the Anti-Corruption Bureau of Ukraine and Volodymyr Petrakovsky – Ukrainian former prosecutor, lecturer at Kyiv Mohyla Academy. Artem, how much revenue do you think Ukraine loses each year due to corruption?

Sytnyk: We haven’t done research on this, but to answer this question we should probably research specific sectors. Because what we see is that the most problematic areas are state companies – at the moment we are investigating corruption proceeds in this area, of a total amount of more than one hundred billion UAH. The state border is very problematic too, namely smuggling. We find about the same amount there. These are just two areas. Not to mention the energy sector and others.

Popova: During all the time NABU has been functioning, have you had enough authority and viable conditions for fighting corruption? What has been done to improve your work so you can win your court cases?

Sytnyk: In my opinion, the legislation which was passed provided sufficient legal tools to carry out our work effectively. Then when certain tools began to bring results – we found that these tools were taken away from us. Legislation criminalizing illicit enrichment was struck down by the Constitutional court. We were deprived of the opportunity to file claims against agreements that were concluded through corruption schemes. Therefore, as soon as certain tools brought results, we began losing them. As for the legislature, this is also one of our priorities, because we have detained more than 40 judges. This shows the depth of the problem in the judicial system. I hope that this will not happen in the Supreme Anti-Corruption Court.

Petrakovskyi: I would restrict NABU’s jurisdiction, because NABU has limited resources and they cannot do everything. In this regard, speaking about NABU’s projects and undertakings, they are distracted by other things. They have an analytical unit, a little more than 30 people. It is very difficult for their investigators to engage the analytical unit for their cases. For example, recently the analytical unit was involved in analysis of judges’ financial declarations, etc.

Popova: As I understand, the cases of illicit enrichment that you were working on you have currently discontinued, in accordance with recently passed legislation?

Petrakovskyi: Yes.

Sytnyk: I think the reason here is not even in the ones we conducted. But the reason is in those cases that have already been brought to court.

Popova: So the case fell apart in court because of the recent legislative changes?

Sytnyk: The changes didn’t invalidate or destroy the cases, they just removed legal authority for the actions which were being prosecuted. Just when the cases had been brought to court, the new Supreme Anti-Corruption Court was created, which effectively thwarted any possibility of gaining a verdict in these cases. And in fact this took place during the last days of the tenure of the so-called old regime.

Popova: Do media and investigative journalists help or to the contrary interfere with NABU’s work? You were personally accused of disclosing information to journalists. How did that case end, by the way?

Sytnyk: As usual, it ended up being the Prosecutor General’s fantasy – nothing. As far as I know, the case was closed due to lack of evidence of a crime. As for investigative journalists, they certainly don’t interfere, and in fact many of our investigations came about due to the investigations of journalists. There are many examples of this happening here.

Popova: You once said that you wouldn’t collaborate with Kholodnitskiy, and you expected him to step down. Are you now working with him?

Sytnyk: I supported the charges that I brought against him as a result of bugging his office. Currently we are unable to act on this situation. But essentially, prosecutors and investigators have continued their work, and, at this point, if you analyze this work, you can see that it has become much more dynamic and spirited.

Popova: They are less interfering, right?

Sytnyk: I don’t want to say that they interfere. I never said that prosecutors have to agree with all the investigators’ conclusions. That is not possible. This is not possible in any country in the democratic world. A prosecutor is responsible to gauge the legality of investigators’ proceedings. Now, communication and cooperation between investigators and prosecutors has improved. You can see this by observing the latest cases we are investigating.

Popova: But the Anti-Corruption Action Center still published “the register of dumped cases” – cases which were dropped by the Specialized Anti-Corruption Prosecutor’s office.

Sytnyk: I can say that some of those cases which were pending are now being worked on, suspicions are being examined and confirmed, and soon, these cases will be brought to court.

Petrakovskyi: I want to say that we somehow think that this conflict between NABU and SAP is a unique one – the prosecutor having conflict with the investigator. Furthermore, when it comes to specific cases, it seems to me that journalists and activists don’t have a good understanding of the specific circumstances surrounding each case. Especially of those in that register.

Sytnyk: I fully agree here. A fresh example: the case of the so-called “Rotterdam+”. We can find many opposing opinions on this topic. Consequently, we have a problem here with experts drawing conclusions based only on their own experience, without taking the relevant case materials into account. This is on the one hand. On the other hand, there are some cases, for example, the case “concerning Avakov’s rucksacks” – in point of fact the investigation had been fully completed, the prosecutor had made a decision – he had enough evidence to refer the case to court. Then suddenly the decision was made to close the case due to absence of a crime. What had changed since the time this same prosecutor admitted two weeks ago that the case should be referred to court?

Popova: And, for example, Trukhanov’s case.  As far as I understand, it fell apart in court because procedural mistakes were made by the prosecution.

Sytnyk: I would like to emphasize  what I just said about this – It did not fall apart. A case has fallen apart when there is a final decision in the case, and that decision is an acquittal. That situation is a consequence of specific mistakes by the investigator and the prosecutor. But when a court simply writes the word “white” over the word “black” and it’s so obvious that even when you read the verdict textually, if you can call it a verdict, it is basically “white” written over “black”, then the case itself didn’t actually fall apart.

Popova: Then a case should be brought against the judge who issued this verdict, or what?

Petrakovskyi: We do have that responsibility, but it doesn’t work.

Sytnyk: Task number one is to respond to an appeal by a prosecutor against such an illegal verdict. You have probably seen that this was the only case that moved fast of all the 200+ cases we have investigated and brought to court. A case that was moving forward very quickly. Why? Because people were afraid to let this case get to the Anti-Corruption Court. The plan was to process it very quickly in the Malynovskyi Court, where the well known judge Buran worked, and one more judge besides. We have only gotten two judges for taking bribes in this court. Of course, with “titushki” support, it is very easy to count on this kind of verdict from Odessa’s Malynovskyi Court. Of course, there was already a plan for that verdict in the Court of Appeal. I hope that we will have an acting Anti-Corruption Court by the 5th of September and that plan will be thwarted. This is why we can say that the case did not fall apart.

Petrakovskyi: It seems to me that in this case, the prosecutor should also have clearly stated his position, that the court resorted to such absurd legal conclusions that the case should definitely be heard in the Supreme Court. Therefore, even if we take the fantastical scenario that the Anti-Corruption Court doesn’t start working, the appeal will still go through quickly, since a case will have already been made about the extreme ineffectiveness of the whole business, allowing the prosecutor to appeal to the Supreme Court and at least start to look over his legal positions.

Popova: What about Nasirov’s case, for example? He was even reinstated.

Sytnyk: Again, this was in the famous administrative court of Kyiv. This was a different situation. They just moved very slowly. This is precisely the problem and one of the reasons why we have always insisted on the creation of an Anti-Corruption Court. Such cases cannot be heard only once a month for a few hours. It has been a year and a half, and will soon be two years, since we first brought this case to court. In two years, you barely manage to read through the indictment. These cases have to be heard in sessions. I mean, 2-3 weeks in a row and every day. And for every instance of abuse of power, whether by the prosecution, or the defense, they should answer to the corresponding authorities – the QDCPP, or self-governing bodies. And these cases should be heard within a maximum of 60-90 days and reach some definitive conclusion.

Popova: But now, when the Anti-Corruption Court is created, will they refer everything to the anti-corruption court?

Sytnyk: Yes.

Popova: And you hope that they’ll reach a satisfactory decision?

Sytnyk: Of course we hope so. I have never put the level of corruption in the courts as the main problem. There are situations where you have to form a team of three judges, and each of these judges has 600-700 cases. And besides this there’s the case concerning the Head of Fiscal Service. This case is of current interest; society is interested in it. But a judge can’t stop 600 cases for the sake of just one case. The idea of creating the Anti-Corruption Court was that there shouldn’t be 600-700 cases per judge. This is a board where each member should have around 5, a maximum of 6, cases of this level, and be constantly working on these cases. This is how we’ll achieve speedy, decisive outcomes.

Popova: The new president has reconvened the National Anti-Corruption Policy Council. What do you think about this?

Sytnyk: I think it is good that the Council has resumed its work in their new configuration.

Popova: The previous one created by Poroshenko didn’t work, did it?

Sytnyk: There were a few meetings, some important issues were discussed, such as the need for autonomous wiretapping at NABU, the creation of an Anti-Corruption Court, but these discussions didn’t lead to anything. But in reality it’s such a constructive platform for discussing current problems in the field of anti-corruption reform, because they have representatives from law enforcement, from civil society, from the experts & specialists sphere. You can raise issues there and then implement everything as soon as the decisions are made.

Petrakovskyi: I think it’s not a bad start. But overall, I have little faith in these kinds of working groups. I mean it is useful for department heads and experts to voice their issues at a certain level. And of course, it’s a convenient way for the presidential administration to hear everyone immediately, relatively speaking.

Popova: Do you make use of any other countries’ experience in fighting corruption? And which countries?
Sytnyk: From what we saw in other countries, I personally understood that each country is unique. There’s no such model that, for example, came from Poland, was then implemented in Ukraine – and worked here. That isn’t possible. It’s interesting to see and take in new things, but you have to consider the realities of Ukraine.

Popova: And Ukrainian legislation.

Sytnyk: There was no such elite, like what we have here, in any country we visited. We have never seen the kind of resistance that would be brought to bear by the current government on anti-corruption organizations’ work. Speaking about our colleagues, especially our neighbors Poland, Estonia, or Latvia, when they observe us, they are shocked by how much even parliament is trying to block anti-corruption reform. And with each passing month it has become more and more visible. No one else has this experience. But at the same time we studied the structures that worked there. For example, in Poland the Institute of Undercover Officer Work is very well-developed. We cooperate with them in this direction. In the UK – what has been said in part about the analytical unit, the database analysts work very well. We have tried to build our analytical department on the same model as in London.

Popova: How many cases have you opened and how many cases have been brought to court?

Sytnyk: Today, there are nearly 230 criminal cases which have been brought to court. The number of cases filed is a statistic that is more relevant in the field of criminal justice. Because, unfortunately, the structure of the criminal procedure code allows you to file cases every day, one hundred per day. It means nothing. And we have seen abuse in this area very often, abuse of the right to bring a complaint to court. In fact this falls precisely within the sphere of corruption, when people bring complaints against each other and then run to the State Bureau of investigation: “Look, I brought a complaint against Sytnik (or on Ivanov, or Petrov, or Sidorov)…”.

Popova: The work of anti-corruption entities is well-known, thanks to the media. In Italy, Antonio Di Pietro brought in 5,000 persons over several years. But it seems to me that they put less than that in prison. That was the “Clean hands” operation. People allegedly applauded him on the streets; they supported his work so strongly. Although it’s understood that he was later removed from power. But subsequently he became a government minister. You don’t have any indicator showing that the number has gone into the thousands, do you?

Sytnyk: We’re talking about cases, not about the number of persons involved. That number is, of course, higher. I am pleased that we have now started working more with the Security Service of Ukraine. Because before we were working on our own and in the face of total opposition. Now that the state has a more comprehensive approach to tackling crime, including in the area of ​​corruption, the results will certainly be much greater. Recent examples include improving cooperation with the Security Service of Ukraine. The expert opinion we were trying to obtain for six months on” Rotterdam+”, whatever it was, was given to the Security Service of Ukraine. Now for the first time in four years we are getting good, informative material from them, interesting information that we can work together on and realize.

Popova: There is also the example of Romanian prosecutor Laura Kövesi, who was also able to prosecute thousands of participants in high-profile corruption schemes, with a high rate of imprisonment, by the way. Still, she was later dismissed, she is not allowed to hold the office of European Public Prosecutor, but nevertheless she did very effective work.

Sytnyk: They started to do such effective work only in the 7th year after the creation of their agency, to be completely objective. And its founding took much longer. Now NABU is an agency that was created much faster. Now we have a court that will actually be able to make determinations on many cases.

Popova: So you propose to start your count from the time of the Anti-Corruption Court’s creation?

Sytnyk: We don’t have any other choice. Because the issue of prison sentencing is not a matter for the Bureau or the Anti-Corruption Prosecutor’s Office. We have a democratic state, and the question of guilt is decided exclusively by the court. And only the court can say and decide whether to put a person in prison or not, and to return the funds that we have confiscated. I think that either we will just now be finalizing these cases in a few months (I mean NABU, SAP and the Anti-Corruption Court), or, again, the question of the expediency of functioning at all, if we are making arrests, detaining suspects… Somewhere around 6 billion in stolen assets have been recovered. These are resources that could have already been returned to the state budget but are stalled.

Petrakovskyi: If we’re looking at the Romanian scenario, first of all, she headed up the Anti-Corruption Prosecutor’s Office. The Anti-Corruption Prosecutor’s Office didn’t have its own anti-corruption bureau. She pulled in investigators and detectives from other units. And what is important to understand is that they have a very strong security service. In fact, all the cases there that are super awesome, they were, in the first place, founded on materials obtained from this security service. And secondly, there is a very serious suspicion that the service got judges on the hook who were reviewing the cases that Laura was bringing. In other words, it turns out that the security service provided Laura with all her materials from start to finish, including providing verdicts for them.

Sytnyk: It is imperative that judges are not intimidated. And it is essential that judges are able to make lawful decisions without incurring negative consequences for themselves. This is vital. Unfortunately, even those cases in which judges in general courts wanted to do something, they immediately underwent disciplinary proceedings. Here is an example: a judge from Lviv gave permission to conduct a search at Vovk’s, and the immediate result was a disciplinary proceeding. Years worth of charges filed are pending, but here you have instant response – an immediate reprimand. And it was only cleared up in the Grand Chamber. In the case of the rucksacks, the judge gave a certain decision and there was an instant reaction, and instant procedure. And he couldn’t even become an Anti-Corruption court judge, because it was written that a judge who has undergone a disciplinary proceeding cannot be an anti-corruption judge. And there are a lot of such cases. If an expert carries out an examination in connection with a high-profile case he is searched immediately, his license is revoked and so on. I am often asked about the Anti-Corruption Court, and although to eliminate the logistical problems that I mentioned is very important, still the most important thing is that a judge shouldn’t be subjected to unlawful prosecution for issuing lawful verdicts and decisions in court. Unfortunately, there was no protection from this before. I hope that this situation will change with the recent change of government.

Popova: How can we protect NABU, how can we keep it from being politicized? You met with Shabunin and Bogdan. During Poroshenko’s time you visited his house. Now, journalists have seen you near the office of the President. Everyone goes to meetings at times, even civil society. Nevertheless, it is preferable to be an independent agency, not connected with politics. How can we achieve this?

Sytnyk: Guarantees of this independence are provided by law. This is the first thing. Secondly, the fact of such meetings taking place doesn’t mean that any processes were influenced by anyone. What we have to look at is, what work is being done? Which persons are concerned? There seems to be a lot of uncertainty right now, because for the first time in the history of NABU, we’ve started to bring to justice people regardless of political affiliation or position. But none of them, neither the president, nor anyone else, will be able to influence these processes. And to hold communication regarding changes in legislation is a must. Because we cannot stand aside from this process.

Popova: You probably understand that a visit not for his birthday, but just in the evening to Zelenskyi or to any President’s home can cause suspicion in society. Maybe you shouldn’t do that?

Sytnyk: I didn’t go to anyone’s birthday. There has been nothing but work meetings for 4 years. Of course, I am always ready to answer any concerns. There were several meetings in the President’s office, mainly with Ruslan Ryaboshapko. I don’t see anything wrong with that.

Popova: No, we are not talking about work meetings during office hours. I am talking about meeting outside of office hours.

Sytnyk: Work meetings can be held not only in office. I want to say this again, I didn’t have any non-working meetings. And no one even invited me to any non-work meetings or events.

Petrakovskyi: Unfortunately, we don’t have a culture of communication between law enforcement officials and high-ranking state officials. In any civilized country, there are norms regarding this which apply to all authorities, including private companies. The head of the institution doesn’t meet alone. He usually is usually accompanied by the head lawyer. So at least two of them are present. And in the president’s office, someone is present too. Secondly, if the leader of a state is the head of government, then in general, the pre-trial investigation body is usually the central body of authority, and it is, in a sense, his resource. This is then a logical subordination. Unfortunately, or fortunately, this is not true for us. In our case, heads of departments must distance themselves from the president, if we’re talking about the problems that existed previously. But in this case, what is most worrying is not even when the pre-trial investigation body or its supervisor holds private communication with the presidential administration, but when the prosecutor does. We know the story of Yuriy Lutsenko, who was everywhere with the president: at his wedding, birthdays, and everywhere, together with his wife.

Popova: And what about all the “bad practices” that we have, how can we increase confidence in the anti-corruption bodies? Because right now even journalists are more trusted.

Petrakovskyi: We need to share information. After the story in the US when the former Attorney General was accused, and there was a story about the head of the FBI, now even in the United States there’s the question of how to keep full records and to keep services informed, whenever the President has a formal or informal meeting with the head of some department. Whether with the Attorney General or with the Head of the FBI, if we’re talking about the United States. I think we should have the same. The Prosecutor General and the Office of the President, if we’re talking about NABU, State Bureau of Investigations, they also should inform the public every time, of when and why the President and a department head are having a meeting.

Sytnyk: I agree here that this should be gradually implemented. There wouldn’t be any questions about the Bihus investigation if we had something like that. The main problem is that, with people like Shevchenko, there was no culture of communication. And now we are incorporating the American experience, in order to set things up so that, if a question or concern comes up, there won’t be any “his word against yours”. We get the same protocol of a full meeting, no more one-on-one communication. At the FBI, as far as I know, there are no situations when one agent meets one informant. At least two of them are present, so that there can’t be any accusations. As for the short-term perspective, when I communicate with journalists, activists and public organizations the only question in the last 3 years from them is “When will you put someone in jail”?

Popova: People want blood?

Sytnyk: I wouldn’t put it like that. People want justice.

Popova: Yes, justice.

Sytnyk: So, I think the next six months will show whether there is a chance that a sense of justice will emerge. When judges’ verdicts materialize, when confiscated funds are returned back into the budget, when a person who is reasonably suspected of corruption receives a well-deserved punishment.

Popova: Thank you for coming to our studio. See you next week.

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