Head of SAPO Klymenko on reform of anti-corruption prosecutor’s office adopted by Verkhovna Rada: They gave us independence but denied us procedural tools. 1000 cases are under threat of closure
The law on the reform of the Specialised Anti-Corruption Prosecutor’s Office adopted by the Verkhovna Rada the day before took into account most of the wishes of the SAPO, which the anti-corruption prosecutors had justified to strengthen their independence.
This was stated by the head of the SAPO Oleksandr Klymenko in a commentary for ZN.UA, Censor.NET reports.
But the biggest drawback of the adopted law, according to Klymenko, is that it does not contain a procedural component. In order to strengthen the institutional capabilities of the SAPO, it was necessary to amend the procedural legislation.
"Firstly, to empower the head of the SAPO to send extradition requests in criminal proceedings investigated by the NABU," says Klymenko, "Secondly, to give the head of the SAPO the right to initiate investigations against MPs. At present, we can neither initiate investigations against MPs nor coordinate any investigative and procedural actions - all this remains the competence of the Prosecutor General, although MPs are under the jurisdiction of the NABU and the SAPO. Thirdly, and most importantly, the Lozovyi amendments must be completely cancelled so that our investigations end up in court, and not closed for formal reasons at a preparatory court hearing."
Unfortunately, the Verkhovna Rada only partially cancelled the Lozovyi amendments: it means cancelling the term of judicial investigation from the moment of entering the URPTI to the notification of suspicion. According to Klymenko, this is a good change that will affect cases registered after 1 January 2024.
"But the grounds for closure and extension of terms after suspicion by the investigating judge - all this remains in the CPC. This approach does not resolve the issue and threatens to close the proceedings that are already in court or under pre-trial investigation," said the SAPO Head.
Oleksandr Klymenko also refuted the opponents' arguments that the SAPO allegedly provoked the problem of closing the cases of top corrupt officials, because after the Lozovyi amendments of 2018 came into force - and they applied only to new cases registered after the adoption of the amendments and did not have retroactive effect - prosecutors continued to extend the investigation period without the participation of the investigating judge and, according to opponents, violated the law. We are talking about a large number of merged cases, which, according to the CPC, were automatically assigned the numbers of old cases registered before the Lozovyi amendments were adopted.
"In some cases, when we had doubts, we appealed to judges, and they refused us," explains the SAPO head. - "There was even a position of the HACC Appeals Chamber that prosecutors should extend the terms themselves. We couldn't overwhelm the court with a flood of our motions because we are analysing the practice. The position of the Supreme Court was also on the side of the SAPO and changed only in 2022, when the Supreme Court, interpreting the Lozovyi amendments, suddenly pointed out that it was the investigating judge, not the prosecutor, who should extend the investigation period in joint proceedings. And this is the absurdity of the situation. The prosecutor in this situation acted with integrity and took all measures to ensure that his actions complied with the law. No rights were violated. Therefore, I think that the court should continue to hear these cases, and not close them under paragraph 10 of the dubious amendments."
According to Klymenko, after constant improvement of the amendments by the legislator, the situation has developed such that no one can calculate the timeframe of the investigation. Each case uses different methods of calculating these terms, and they do not coincide in the first instance, appeal and cassation. This is chaos.
"All the cases that are currently pending, which have been merged, and decisions have been made to extend the terms, remain at risk," Klymenko said, "and this is a large number of cases - 750 proceedings at the NABU and 250 that are being heard in court. That is, about 1,000 cases are now under threat of closure only because the legislator has not prescribed clear rules. And these are only HACC cases, but there are also cases in other courts."
According to the head of the SAPO, the problem can only be solved by amending the CPC to abolish Article 284(1)(10) as a ground for closure and granting the right to extend the pre-trial investigation after the prosecutor has been served with a suspicion. This is because the prosecutor is legally limited: the maximum period of investigation after serving a suspicion under grave and especially grave articles is 12 months. He cannot extend it any further.
Regarding the competitiveness between the defence and prosecution (which is ensured by the remaining provision when the terms are extended by the investigating judge), Klymenko clarified: "It should be understood that we are talking about the investigation period for the prosecutor and investigator. The court is not responsible for compliance with the deadlines - this is the prosecutor's parish. But he has no right to extend them. What does this have to do with adversarial proceedings? The defence can collect evidence throughout the pre-trial investigation, as well as beyond the pre-trial investigation. The prosecution cannot: the investigation is complete and that's it. The period of 12 months is reasonable. In most countries, it is the prosecutor's responsibility to extend the investigation, because he or she is responsible."
According to Klymenko, a classic example is the case of Oleh Tatarov, deputy head of the Presidential Office: "The NABU and the SAPO served him with a notice of suspicion, after which the case was taken away from them. Then the SBU investigator and the Prosecutor General's Office appeal to the Shevchenkivskyi Court to extend the time limit after the suspicion, and the investigating judge says: "I don't want to extend the terms". And they close the case. Who is to blame? To whom should we lodge complaints? Does anyone know this judge? And so it would be the responsible official - the prosecutor. The same was the case with the DACK, where the court did not extend the investigation for far-fetched reasons. What was our option? We had to either close the case or go to court with a weak position, because it was impossible to meet the deadlines, taking into account the need to complete examinations that were beyond our control. In other words, there is no logical argument why these amendments should remain in place."
"There is a registered draft law No. 10100 authored by David Arakhamia, Anastasia Radina and a group of MPs - it could be the basis for cancelling the Lozovyi amendments, as it includes most of the necessary changes, but the parliament has not even started the review procedure," Klymenko says. "As for the SAPO's prospects, I think that no one will make any more changes to the law on the SAPO. We asked to facilitate the procedural selection of heads of departments and their deputies, but the legislator, on the contrary, made it more complicated. This is in addition to the fact that we were not given procedural tools.
Obviously, the authors of the draft law, who did not take into account our key proposals, know better how the SAPO should work - in order NOT to become more effective. Because the remaining provisions make it possible to close any corruption case at the pre-trial investigation stage." In the current situation, only simple cases can be investigated.
"For example, a one-episode bribe, where there is no need to calculate anything. But the SAPO investigates cases with many episodes. And each episode is a new proceeding, which the prosecutor combines with the main proceeding, if we are talking about criminal organisations, where there may be 10 episodes. We have a case with 700 episodes, which means 700 mergers of cases. Do you seriously think that anyone will be able to calculate the timeframe there? Therefore, no matter how many prosecutors are added to us and detectives to the NABU, this approach of the legislator will not make us effective," said the head of the SAPO.
