People with carton cards defended the independence of SAPO and NABU. It is much remains to be done — to solve their internal problems and make them exemplary. 7 challenges that must be overcome

The Ukrainian anti-corruption system is only 10 years old. It was built gradually, one link at a time — competitions for management positions were held, legislation was changed. It can be considered that it is still operating in an “experimental” mode.

The main elements of the system are the National Anti-corruption Bureau (NABU), the Special Anti-corruption Prosecutorʼs Office (SAPO), and the High Anti-Corruption Court (HACC). In addition, the National Agency for the Prevention of Corruption (NAPC) collects declarations from Ukrainian officials, and the Assets Tracing and Management Agency (ARMA) sells seized assets at auction.

The NABU detectives combine two functions at once: they are operatives and investigators. The SAPO prosecutors ensure that detectives investigate cases without violating the law, collect enough evidence, and when the case goes to court, it is they who prove the suspect’s guilt based on the collected materials.

Finally, the judges of the Supreme Court of Ukraine consider cases and issue verdicts. The court consists of two instances: the first and the appellate.

If the parties have gone through both instances and are still dissatisfied, the Supreme Court of Ukraine’s decision can be appealed to the Supreme Court.

Over the past ten years, the anti-corruption system has accumulated a lot of problems. One of them is the problem of public image.

On the one hand, anti-corruption bodies are considered the most progressive elements of the Ukrainian law enforcement system. They are protected from pressure from the authorities by both public organizations and youth at rallies.

On the other hand, they have managed to open several high-profile cases that have damaged the reputations of high-ranking officials (such as the commander of the National Guard or former minister Andriy Pyvovarsky) and look far-fetched.

Much less well-known are the internal problems of these bodies. Hereʼs what they look like, according to former employees and anti-corruption experts.

Problem 1: in the working relationship "NABU-SAPO" detectives are the main ones, but they should be prosecutors

This problem was laid at the very beginning of the anti-corruption reform. In developing anti-corruption bodies, the focus was on the NABU detectives. Money and the attention of public organizations were invested in them. The specialized anti-corruption prosecutorʼs office was created on a residual principle.

“They put the cart before the horse,” says Volodymyr Petrakovsky, a lecturer at the Kyiv-Mohyla Academy and a former prosecutor at the Kyiv Prosecutor’s Office.

He explains that in the Ukrainian law enforcement system, it is the prosecutor who controls criminal proceedings from the beginning of the investigation until the verdict comes into force.

The prosecutor can register the proceedings, controls that detectives conduct the investigation in accordance with the law, so that they collect enough evidence. He registers the proceedings, signs the suspicion and the indictment — when there is enough evidence to prove guilt in court. It is the prosecutor who is responsible in court for the detective’s mistakes. Detectives work only at the stage of pre-trial investigation.

Ukrainian and European legislation provides guarantees of independence to prosecutors. They are an “umbrella” that covers detectives. But the Ukrainian anti-corruption model has turned out to be skewed. In practice, it is NABU that manages the investigation and decides what and when to do. Prosecutors are often forced to adapt.

From time to time, prosecutors refuse to sign a suspicion (less often an indictment), and then they are pressured by the media, public activists, or international partners.

According to former SAPO prosecutors, some prosecutors can be “squeezed” and sign poor-quality materials. A former NABU official recalls cases when NABU detectives were tasked with looking for additional evidence because there was not enough of it in the case. Instead, they went to the SAPO prosecutor, and he signed a suspicion for them.

“This lowers the level of detectives and their desire to develop,” the interlocutor is indignant.

At the same time, both Petrakovsky and other interlocutors of Babel say that prosecutors themselves should be more active. At the beginning of the investigation, they should determine the strategy, suggest what evidence is needed.

In those proceedings where prosecutors work in this way, there are significantly fewer problems. This applies not only to the anti-corruption system, but also to the prosecutorʼs office in general.

Problem 2: some external and internal competitions in the SAPO and NABU are formal

Even under the previous director Artem Sytnyk, competitions were sometimes formal in NABU. Now there are questions about their transparency.

As an example of a formal approach to competitions, Babelʼs interlocutors who worked in NABU cite the victory in the competition of Andriy Kaluzhynskyi, Artem Sytnykʼs compadre. A year later, in 2015, he headed the Main Unit of Detectives of NABU. That is, he managed all detectives.

Another example is given by former NABU detective Artem Krykun-Trush. According to him, one of the NABU departments remained without a head for two years, as this position was held under Roman Daraha, the compadre of Andriy Kaluzhynsky.

“He headed this unit as an acting one and failed the logic test three times. Instead of putting the people who came, the competitions were postponed for his sake,” recalls Krykun-Trush.

In some internal competitions, the results are even now known in advance, claims another former NABU detective on condition of anonymity. This happens because the commission consists of heads and deputy heads of departments. They agree among themselves on the final result of the competition.

“There is a bidding process: you vote for my candidate, and then I vote for yours,” says the former NABU detective.

There are also questions about SAPO competitions for ordinary and managerial positions.

The first concerns their transparency. As former prosecutor Stanyslav Bronevytskyi told Babel, in October 2024 he was summoned by the deputy head of SAPO Andriy Synyuk. Andriy Synyuk told Bronevytskyi that he had outgrown his position and asked if he wanted to work as a regional prosecutor or head of a department in SAPO. Bronevytskyi added that even before the competition, the SAPO leaders offered him courses that trained administrative personnel.

“If the SAPO leadership offers a position in the General Prosecutor’s Office, it means that they have good relations and can appoint their people there. It also turns out that they can influence the competition for administrative positions in SAPO,” says Bronevytskyi.

According to him, after the last competition, all administrative positions were filled by the SAPO employees, there was no one from the outside.

“Most of them are good people, but why hold competitions then? Let Klymenko appoint heads of departments with whom he is more comfortable working,” says Bronevytskyi.

The head of SAPO Oleksandr Klymenko is a former NABU detective. 4 of his former subordinates from NABU successfully passed competitions at SAPO. Three of them worked at NABU directly under his leadership, in his department.

“Does this raise questions about the fairness of the competition? Yes,” says Bronevytskyi. One of the detectives got into SAPO for the fourth time, only after Oleksandr Klymenko became the head of the prosecutor’s office.

A member of the competition commission for the selection of prosecutors Kateryna Butko explains it this way. In the first competitions for SAPO, the best of the best were selected. Now it is necessary to adjust to the general level of the contestants.

Butko adds that the contestants who did not pass on the first attempt progressed. After an unsuccessful attempt, they understood that they needed to catch up. At their current place of work, they were asked to do more complex cases and came to the next competition with relevant experience.

A well-known dubious story surrounding the SAPO competition concerns Dmytro Lytvynenko.

He worked as a detective in NABU and was a subordinate of Oleksandr Klymenko. Then he passed the competition to become a SAPO prosecutor.

“[Dmytro Lytvynenko] played into the hands of the company [ʼOptimumspetsdetalʼ, when he worked at NABU], because of which Ukroboronprom overpaid three times,” says former SAPO prosecutor Stanyslav Bronevytskyi.

“During the internal investigation, he cheated on the polygraph. Can a person [honestly] win the competition [to become a SAPO prosecutor] after that?”

During the interview, the commission members did not ask Dmytro Lytvynenko about this episode of his work. In addition, Lytvynenko did not answer some of the commissionʼs questions about the legislation.

Having won the competition, he never started working as a prosecutor, because he has been serving in the Armed Forces of Ukraine since the spring of 2022.

Competitions in SAPO are considered "problematic" and for objective reasons.

In 2023, when SAPO received the status of a separate legal entity, the competition procedure was also changed. Since then, the competition commission must submit not one winner of the competition, but two applicants, to the head of SAPO for approval.

It is Oleksandr Klymenko who chooses the winner of the competition.

"Then why hold a competition if it is enough to hold the person Klymenko needs and someone else for appearance?" says a former SAPO official.

A member of the competition commission for the selection of prosecutors Kateryna Butko believes that this approach reduces the number of people that SAPO can hire, and that this norm should be abolished.

Since the beginning of the full-scale invasion of the Armed Forces of Ukraine, about 10 prosecutors have left.

Some of them headed departments in SAPO. According to Bronevytskyi and a former senior official in SAPO, the following happened to them. After SAPO received a separate legal entity, Klymenko forced the prosecutors to write statements in which they agreed to the positions of ordinary prosecutors.

They were not replaced with certificates, they were removed from joint chats and other prosecutors were forbidden to communicate with them.

“These are very strong prosecutors who headed departments: Symkiv, Kozachyna, Musiyaka, Olyfir, Hryshchuk, Semak. They were demoted because they are more professional than Klymenko and can create opposition to him,” says Bronevytskyi.

Problem 3: prosecutors depend on the head of SAPO, and he abuses this.

The law guarantees prosecutors independence, so that they conduct investigations impartially. Prosecutors cannot be pressured by the media, public organizations, or political parties. They are also not allowed to put pressure on a prosecutor within the prosecutorʼs office, including the leadership.

According to 3 interlocutors of Babel who worked at SAPO, the head of SAPO Oleksandr Klymenko uses disciplinary sanctions as a mechanism to influence prosecutors. He also sides with the NABU detectives instead of exercising prosecutorial control.

As an example, Babel’s interlocutors cite the dismissal of the head of the prosecutors’ department Oleksandr Omelchenko. Omelchenko was the senior prosecutor in the group of prosecutors who handled the case of former Supreme Court Chief Vsevolod Knyazev.

He decided to send Knyazev’s phone to Poland for examination so that data could be removed from it. This caused a conflict with the head of SAPO Oleksandr Klymenko. Omelchenko filed a statement with the Prosecutors’ Council, accusing Oleksandr Klymenko of pressure. In the end, Klymenko reduced Omelchenko’s position, citing reorganization. Omelchenko, under pressure, agreed to the position of deputy of the Ternopil Regional Prosecutor’s Office.

Another prosecutor Yuriy Khyt refused to sign the suspicion against the head of the State Enterprise “Agency of Local Roads of Poltava Region” because it should have eliminated shortcomings.

The suspicion was signed by another prosecutor, and Klymenko complained about Yuriy Khity to the Qualification and Disciplinary Commission of Prosecutors (QDCP), which reprimanded the prosecutor.

Within a few months, QDCP dismissed Yuriy Khyt based on another complaint by Klymenko. The complaint concerned the annual evaluation of the prosecutor — the prosecutor reports how many suspicions he declared, how many indictments he prepared, etc.

Prosecutors submit such information in November of each year. In order not to lose data for November and December, all prosecutors collected statistics for the period “from November to November” — this was agreed upon by the former acting head of SAPO Maksym Hryshchuk.

Oleksandr Klymenko filed a complaint specifically against Yuriy Khyt, saying that he took data not for the current calendar year, but for the previous one.

“QDCP played along with Klymenko and dismissed Khyt based on this complaint,” says former prosecutor Volodymyr Petrakovskyi.

The case in which Khyt refused to sign the indictment fell apart in court — the Supreme Court of Criminal Appeals acquitted the head of the DP in the first instance. But the key consequence of this story is that all prosecutors are at risk of dismissal.

After all, they all submitted their evaluations in the same way — from November to November — and the head of the SAPO can file the same complaint against anyone.

“All prosecutors took this story as a warning,” says former SAPO prosecutor Stanislav Bronevytskyi.

Problem 4: internal control at NABU is of poor quality

NABU has an Internal Control Department (ICD). It is responsible for investigating complaints about fraud, ethics violations, witness relations, and bribery offers, conducting internal and pre-trial investigations into violations by detectives, and protecting whistleblower detectives.

The department is also responsible for preventing corruption by training and advising employees.

But Babel’s interlocutors say that the NABU Internal Control Department is working poorly. The NABU detectives do not trust it — this is stated in the NABU audit.

The management uses internal investigations to put pressure on undesirable detectives and minimizes punishment for those with whom it has good relations. Two former detectives (one of them on condition of anonymity) told Babel about this.

One example is the story of the NABU letter to “Ukroboronprom” about “Optimumspetsdetal”. Former detective Artem Krykun-Trush recalls that there was an internal conflict in NABU because of this.

“We insisted that [the head of the NABU Main Detective Unit Andriy] Kaluzhynskyi and [his deputy Oleh] Borysenko should be fired. But without the intervention of international partners, there wouldn’t even be any reprimands”.

NABUʼs internal control is subordinate to the Director of the Bureau. He decides whether to start an internal investigation, approves the decision of ICD before the case is transferred to the disciplinary commission, and then approves the commissionʼs decision.

It is he who has the final say whether to bring someone to justice. As a former NABU detective, who understands the processes of internal control, under the leadership of Artem Sytnyk, says that when internal control brought materials on "his own people", he did not allow the investigation to be conducted, promising to "talk to them".

The law allows the director to agree with the findings of the disciplinary commission or cancel them without explanation. The commission does not publish its findings and is not obliged to do so.

Babelʼs interlocutors in NABU believe that the findings should be made public — this would restore trust in ICD and give employees an understanding of what they are being punished for. Currently, commission members choose different penalties for the same violations.

"Often everything depends on the attitude of commission members to the person," says a former NABU detective.

This is also mentioned in the audit.

The auditors separately call the problem that NABU has not had a single successful criminal investigation into stories where NABU employees “leaked” information from pre-trial investigations.

In addition, the auditors indicated that ICD is reluctant to conduct official investigations when the SAPO prosecutors file complaints against the NABU detectives. Currently, quite a few appeals from the SAPO prosecutors end in official investigations.

NABU never reports on its disciplinary proceedings either to the media or to its employees. The only exception is the case of detective Stanyslav Braverman, who had an intimate relationship with a witness in the case he was investigating.

According to Petrakovskyi and several former NABU employees, the Bureau should report on the results of disciplinary proceedings.

“It is still unknown with what wording the two deputy directors of NABU were dismissed — Gizo Uglava and Andriy Kaluzhynskyi. The Bureau should show that it analyzes negative practices and works to prevent them from recurring,” says Volodymyr Petrakovskyi.

Problem 5: internal control in SAPO does not (and cannot) control management

In 2023, SAPO changed the procedure for disciplinary proceedings for prosecutors and created an internal control unit. It reviews complaints against prosecutors, makes recommendations to the Qualification and Disciplinary Commission of Prosecutors (QDCP), and conducts secret integrity checks.

Initially, the head of SAPO Oleksandr Klymenko wanted SAPO to have its own disciplinary commission. The Council of Europe did not support this, and then he insisted on creating its own internal control unit.

This unit is not headed by a prosecutor (who is guaranteed independence even from the head by law), but by a civil servant — and he is subordinate to the head of SAPO.

The unit has received very broad powers. It has access to the prosecutorsʼ office computers, safes, and phones, although the law does not provide for this, says Volodymyr Petrakovskyi. The procedures for considering complaints and inspections are not defined — this is decided by the head of SAPO.

Possible complaints against the head of SAPO himself will also be considered by this unit, which is subordinate to him. This contradicts the standards of the Council of Europe and the approaches of the EU.

Problem 6: Agreements with the investigation are used to "save face"

In theory, plea bargains save the resources of the judicial system and allow for faster punishment of the guilty. In the anti-corruption system, plea bargains have their own specifics. They should be entered into if a participant in a crime exposes the organizers and compensates for the damage caused by his actions.

If the crime was organized by one person, then, according to the Criminal Procedure Code, there cannot be a plea bargain. In practice, the Deputy Executive Director of Transparency International Kateryna Ryzhenko plea bargains are concluded when SAPO is not confident in the quality of the detectivesʼ work, or when the prosecutorʼs office does not meet the required deadlines.

The NABU auditors, who spoke with judges of the High Anti-Corruption Court (HACC), note that from 2023, simpler and less resonant cases will be brought to the anti-corruption court than before. Plea agreements are becoming more frequent. This has a side effect.

In society, corrupt officialsʼ agreements with the investigation are perceived as a way to pay off, which is covered up by money transfers to the Armed Forces of Ukraine.

Some high-profile anti-corruption cases were supposed to lead to real punishments, but ended in settlements. One of the most famous is the already mentioned Zlochevskyiʼs case, where the owner of a gas production company organized a bribe of $6 million to the then head of SAPO Nazar Kholodnytskyi.

In this case, the SAPO prosecutors agreed to a deal because the lawyers argued that the indictment was signed with violations — this could have ruined the case. Before concluding the deal, Zlochevskyi was reclassified from bribery to abuse of influence — this crime carries a milder punishment.

Zlochevskyi pledged to transfer UAH 660 million to the Armed Forces of Ukraine.

Another such well-known case is that of businessmen Borys Kaufman and Oleksandr Borukhovych. They led an organization that took control of the Odessa City Council and seized the property of the Odesa Airport.

NABU claimed that they caused damage to the state in the amount of UAH 2.5 billion. Under the agreement, Kaufman and Borukhovych will compensate a little over a billion.

In addition, despite the statements of the head of SAPO, the largest asset — the new airport terminal — remains in the ownership of private companies. Both agreements are classified.

The SAPO head Nazar Kholodnytskyi and the NABU head Artem Sytnyk talk at a press conference about being offered a bribe of $6 million to close a case where Mykola Zlochevskyi was one of the suspects.

On July 8, 2024, the SAPO prosecutors concluded another agreement in the “Vladyslav Kaskivʼs case” regarding the embezzlement of UAH 260 million from the State Investment Project.

The money and land were returned to the state, but the court verdict stipulated a special condition. The defense could file a motion to quash the verdict if ARMA did not sell the land within a year of signing the agreement. ARMA held several auctions, but was never able to sell the land.

Therefore, it is not excluded that the verdict will be quashed, and the state will return the land and money to Vladyslav Kaskiv. It is unknown who and why included such a clause in the agreement.

Another, 7 problem: "unearned benefit" in the NABU cases

Recently, the NABU detectives have been using the concept of “lost profits”. They consider them losses for the state. For example, this approach, as used in the case of former Minister of Infrastructure Andriy Pyvovarskyi.

The concept of “lost benefit” is criticized by lawyers. According to the judge-speaker of the Appellate Chamber of the Supreme Court of Justice of Ukraine Andriy Nikiforov the issue is that such “imaginary” damage is difficult to prove — since it is an assumption.

“In criminal law, guilt is proven by the standard ʼbeyond a reasonable doubtʼ. That is, you have to be one hundred percent sure. Will the prosecutor have enough evidence and arguments? There are not very many such cases yet,” says Andriy Nikiforov.

He emphasizes that there is no methodology for calculating lost profits. Moreover, this term is not defined in criminal law.

According to Nikiforov, the Supreme Court does not yet have a unified position on this issue. The discussion revolves around whether a category from civil law can be applied to criminal law.

Conclusions: independence does not equal permissiveness

Ten years ago, anti-corruption agencies were given two main tasks. The first is to investigate corruption cases of officials and politicians. The second is to remain independent from the government and all political forces. They will succeed in this only if they cooperate with public organizations.

The most famous of such organizations is the Anti-Corruption Center (ACC), headed by Vitaliy Shabunin.

Independence means increased responsibility. NABU, SAPO, and HACC must adhere more strictly than other law enforcement agencies to the principles of the rule of law and internationally recognized human rights. Civil society organizations, in turn, must ensure that anti-corruption agencies do not violate them.

But in their attempts to protect NABU and SAPO from the authorities, some public organizations regularly turned a blind eye to their mistakes. For example, the Central Criminal Police Office called the deal with businessmen Mykola Zlochevskyi and Borys Kaufman a success.

When the European Court of Human Rights declared that the NABU detectives violated the principles of international law in the case of Heorhii Lohvinskyi, ACC wrote that the Bureau was trying to discredit it. Other Ukrainian human rights activists wrote that NABU “clearly violates the rule of law”.

“Many public figures [...] accused Lohvinskyi and others of corruption. We have not seen any evidence of this,” their statement said.

Former NABU detective, lawyer Artem Krykun-Trush draws attention to the double standards applied by public organizations. When the NABU detectives conduct high-profile searches of suspects that do not result in real convictions, they are doing their job.

When the NABU detectives themselves become the object of such high-profile searches and detentions (as in the case of Ruslan Maghamedrasulov), it is the authorities who are putting pressure on anti-corruption agencies.

"If [NABU] can do it, then why canʼt SBU?" says Krykun-Trush.

SBU and PGO detain the head of NABU interregional detective department in the city of Dnipro Ruslan Maghamedrasulov. He is suspected of doing business in the Russian Federation.