The National Anti-Corruption Bureau of Ukraine (NABU) categorically disagrees with the NACP`s (National Agency on Corruption Prevention) decision №1375 of December 18, 2017, in which the Agency interprets certain provisions of the Law of Ukraine «On Corruption Prevention» regarding the investigation of offences under Articles 366-1 and 368-2 of the Criminal Code of Ukraine. According to the NABU, the proposed explanation of the NACP is legally unjustified and may help corrupt officials to evade criminal liability for illegal enrichment and submitting false data to e-declarations.
It should be reminded that in the abovementioned explanation the National Agency on Corruption Prevention establishes the necessary mandatory multiple conditions for submitting data into the Unified Register of Pre-trial Investigations (URPI) based on the criminal offenses under Articles 366-1 and 368-2 of the Criminal Code of Ukraine. According to the NACP, the investigator cannot start a pre-trial investigation until the NACP conducts a full examination of e-declarations of the persons authorized to implement the functions of state and local self-government bodies and does not establish the violation of anti-corruption legislation, following the results of such verification. According to the explanations the established facts should be reflected in the relevant decision of the NACP compiled as a result of such verification.
Having adopted the abovementioned decision, the NACP not only went beyond its authority, trying to change the procedure for initiating the pre-trial investigation determined by the Criminal Procedure Code of Ukraine, but actually had overtaken the authority of the Constitutional Court of Ukraine.
In particular, according to Article 214 of the Criminal Procedure Code of Ukraine, an investigator or prosecutor must enter relevant data to the UDRP not later than 24 hours after submission of an application of a criminal offense or after self-detection of any source. The presented conclusions cannot be considered as the only possible in any circumstances.
The NACP is not a pre-trial investigation body and does not have the authority to collect evidence, its ability to obtain the factual evidence that may indicate a crime is prescribed by Articles 366-1 and 368-2 of the Criminal Code of Ukraine and its mandate is rather limited in comparison with corresponding institutions. Therefore, the NACP has at its disposal less amount of the information than it is possible to obtain in terms of pre-trial investigation.
In addition, it should be noted that during 2017 only four conclusions on declaration checks that revealed signs of a criminal corruption offense were received by the NABU from the NACP on , while at the same time dozens of allegations and petitions were received from non-governmental organizations and the media about possible illegal enrichment of officials and on the facts of submitting false data to e-declarations.
The Criminal Procedure Code provides a number of evidence (such as testimony, documents, examination) for proving the occurrence of a criminal offense; the guilt of the accused, the form of guilt, the motive and purpose of committing an offense; the type and extent of the harm done, etc. (Article 91 of the Criminal Procedure Code of Ukraine) According to Article 94 of the Criminal Procedure Code of Ukraine, no evidence has a predetermined force for investigator or prosecutor. The set of collected evidence is decisive in the terms of sufficiency and interconnection for the adoption of the corresponding procedural decision. So, the NACP’s conclusions have the legal validity of any other evidence collected in criminal proceedings as of the facts of the offenses prescribed by Articles 366-1 and 368-2 of the Criminal Code of Ukraine.
We emphasized that the Law of Ukraine «On Corruption Prevention» does not provide for the authority of the NACP to give explanations on the Law of Ukraine «On Corruption Prevention» (except for the application of legislative acts on ethical issues, prevention and settlement of conflicts of interest in the activities of officials receiving gifts and terms according to the Law of Ukraine «On Political Parties in Ukraine») and other legislative acts. Such unofficial interpretations of the criminal and the criminal procedural legislation of Ukraine are not a source of law as it is prescribed in the abovementioned explanation.
Thus, the explanation of the NACP contradicts the requirements of the current legislation and cannot be applied in the practice of the Ukrainian law enforcement agencies. This position is agreed by the Civil Oversight Council at the NABU and the recognized experts of criminal law and the criminal process.