Yesterday, on August 28, the Constitutional Court of Ukraine published a decision on the unconstitutionality of the presidential decree of April 15, 2015, on the appointment of Artem Sytnyk as director of the National Anti-Corruption Bureau of Ukraine (NABU). As a reminder, in October 2014, the Law “On the National Anti-Corruption Bureau of Ukraine” was adopted, which assumed the creation of a new law enforcement body, which would have to investigate corruption crimes of high-ranking officials. In general, the corresponding launch of the bureau as an element of the law enforcement system is mentioned in the Concept of reforming criminal justice since 2008. However, the creation was postponed until post-Maidan times.
Already during the reign of Petro Poroshenko, the aforementioned law was adopted and the competition began. Of course, taking into account the typical behavior of the leaders of our state, Petr Alekseevich tried to keep all the power in his hands. Therefore, the deputies voted in favor of a normative legal act providing for the right to appoint the winner of the competition for the post of NABU director to the President of Ukraine. Even then, it became obvious that this was a time bomb because the law cannot contradict the Constitution of Ukraine in terms of Article 106, which contains an exhaustive list of powers of the head of state. In other words, if the Constitution does not contain a specific function for the President of Ukraine, then there can be nothing additional in the laws. And Poroshenko understood that by appointing the director of NABU, he was violating the norms of the Basic Law of Ukraine.
So, in 2014, Petro Poroshenko reserved the right to directly influence the appointment of the NABU director, additionally creating the opportunity to remove the intractable head of the anti-corruption body if the latter changes his mind to follow the president’s political whims. The competition was won then by little-known Artem Sytnik. In 2015, according to the aforementioned decree, appealed by the deputies in the Constitutional Court, Sytnik was appointed to office. Gradually, the launch of NABU began, the first investigations demonstrated their apolitical, because the bureau’s detectives were targeting both the regionals and the authors of the then parliamentary coalition – deputies of the Petro Poroshenko Bloc and the Popular Front. Poroshenko’s associates tried repeatedly to remove Sytnik, in particular through legislative changes, using simplified grounds for dismissing the director of NABU.
However, after the change of power in 2019, a new era began in the work of NABU. Scandals with prosecutors of the Specialized Anti-Corruption Prosecutor’s Office (SAP) have subsided somewhat. There have been several high-profile arrests, including the transfer of the largest bribe in the history of independent Ukraine for the closure of production against ex-minister of ecology in the Azarov government, Mykola Zlochevsky. Of course, not everything was perfect in the NABU-SAP cooperation, but the overall situation has improved. This became especially noticeable when Ruslan Ryaboshapka was in charge of the Office of the Prosecutor General (UCP) in the second half of 2019 – early 2020. Also, cooperation with the Security Service of Ukraine was initially noticed. However, in March 2020, by the hands of the deputies controlled by Kolomoisky and Avakov, together with members of the Opposition Platform For Life faction, Ryaboshapka was removed from office. Under the patronage of the new head of the presidential office, Andrei Yermak, the UCP was headed by Irina Venediktova, who was hindered by both Sytnik and Kholodnitsky. Bakanov changed his policy in the context of the leadership of the SBU, creating problems for NABU due to the desire to take away some of the proceedings (Bakhmatyuk’s cases) or the implementation of relevant examinations in the framework of criminal proceedings. The new team needed “their own” in each of the leadership positions.
After all, attempts to thwart Sytnik are not new even during Zelenskiy’s leadership of the state. The same deputies from the factions “European Solidarity”, OLE, “Batkivshchyna” and the group “For the May but” submitted a bill on the automatic dismissal of the director of NABU and bringing him to administrative responsibility for committing an offense related to corruption. Before that, people subordinate to Minister Arsen Avakov, with the help of the testimony of persons controlled by the agrobaron Bakhmatyuk, “organized” an administrative protocol for Sytnyk in court proceedings for an offense related to corruption. Now the director of NABU is challenging this decision in the European Court of Human Rights. Also, the deputies, again controlled by Kolomoisky, tried to rock the boat by adopting a resolution in the Verkhovna Rada to dismiss Sytnik.
In general, the picture is clear – all the “elites” have united against Sytnik: corrupt officials of various iterations of power, oligarchs, Russians, Donald Trump’s technologists, the “fifth column”. Each of these groups has its benefit: someone wants to calm obesity, someone wants to alienate the West from Ukraine. It seemed that Zelenskiy should have concluded: “boots that must be taken.” But the opposite happened.
Now let’s return to the constitutional proposal of 51 deputies. Recall that it is aimed at defining the unconstitutional right of the President of Ukraine to appoint the director of NABU. The corresponding appeal from parliamentarians was dated April 16, 2020. It is important to note that the signatures were put by the deputies controlled by Kolomoisky, Avakov, and Medvedchuk – Alexander Dubinsky, Maksim Buzhansky, Alexander Kunitsky, Russian agent in the Verkhovna Rada Andrei Derkach and a whole list of deputies of the PLO.
We will not analyze all the points of the presentation. In general, the deputies argue their position by the fact that NABU is a state law enforcement body, therefore, it should be attributed to the system of executive authorities. The president, in turn, does not head the executive branch. Also in the text of the submission, there are references to the decision of the Constitutional Court of Ukraine of December 16, 2019, in the case on the submission regarding the provision of a conclusion on the compliance of the draft law on amending Article 106 of the Constitution of Ukraine (on consolidating the powers of the President of Ukraine to form independent regulatory bodies, NABU, to appoint and dismiss the directors of NABU and the RRG). Then the KSU indicated that the President of Ukraine is the head of state, and the highest authority in the system of executive authorities is the Cabinet. And if the President of Ukraine is empowered with powers that are attributed to the jurisdiction of the Cabinet, it will upset the balance of power.
Meanwhile, it was interesting to learn that the deputies did not bypass the cornerstone of the appealed action of the President of Ukraine. They emphasize that both types of acts fall under the jurisdiction of the Constitutional Court – of a regulatory and individual legal nature. As a result, there is a variation in positions that acts of an individual legal nature could not and cannot be appealed to the CCU. The court, in turn, this time slightly modified its position and decided that such a presentation could be considered.
So, according to the judges of the Constitutional Court of Ukraine, the President of Ukraine went beyond his constitutional powers, appointing Sitnik to the post of director of NABU. Also, the need to change the subordination of the bureau was indicated. In other words, NABU should be incorporated into the system of executive authorities, subordinate to the Cabinet. And it is the prime minister of Ukraine who should appoint the head of the bureau.
As a result, the KSU decided to recognize the decree of the President of Ukraine on the appointment of Sytnyk to the office as not meeting the Basic Law. The relevant document, as indicated, should become invalid from the day the Constitutional Court makes this decision. At the same time, the corresponding recognition as unconstitutional does not apply to the legal relationship arising as a result of the performance of official duties by a person appointed by the President of Ukraine to the post of NABU director. In other words, no investigation by the bureau’s detectives can be declared illegal or suspended due to the publication of this decision of the CCU. Moreover, the director of NABU, according to the current norms of the Criminal Procedure Code of Ukraine, is not the head of the pre-trial investigation body. In other words,
At the beginning of the article, there was a list of persons who most wanted to remove Sytnik from the office. Many examples were given. The cosmic speed of consideration of the representation of deputies in the CCU is not just amazing, such haste is difficult to recall over the past few years. Political motives are the basis for the dismissal of the NABU director from the office. Nobody went over the methods of struggle, just to stop the anti-corruption movement in the state. But I was interested in something else: if the president of Ukraine did not have the constitutional right to appoint the director of NABU, then the head of state also cannot dismiss the head of this law enforcement body.
Moreover, Fyodor Venislavsky, the representative of President Zelensky in the Constitutional Court, admitted that the decision of the Constitutional Court is not an automatic basis for Sytnyk’s dismissal from office. There is one more decision to make. The first thing that came to Venislavsky’s mind was that Zelensky should issue a decree on the dismissal of the NABU director based on the decision of the Constitutional Court. But he is not sure that Vladimir Alexandrovich will go this way. The question, in his opinion, is very controversial and requires a detailed study. Venislavsky also noted that there is a likelihood of revising the procedure for appointing the office of the bureau’s management. And it must be “outside the boundaries of the executive branch.” Because it is there, in the opinion of the president’s representative to the CCU, that the biggest corruption scams are. Therefore, changes in the law will be required.
At first, Venislavsky talked about different scenarios, but later began to argue that Sytnyk’s powers had been suspended. However, without a corresponding decree from the President of Ukraine, Sytnyk will continue to hold office. The decision of the KSU has no direct influence on the suspension of the powers of the director of NABU. And this is where the most interesting lies.
The groups of Kolomoisky, Avakov, and Medvedchuk, with the warm support of Trump’s technologists and the Russian side, organized a kind of zugzwang for President Zelensky. In chess, this term means a situation when each subsequent step only worsens the situation of the one who should make a move with his piece. On the one hand, there is a decision of the Constitutional Court of Ukraine on the unconstitutionality of the appointment of Sytnyk as director of NABU in 2015 and he must be dismissed. But let me remind you that if the President of Ukraine had no right to appoint, then he has no right to dismiss. And here are two options. First, Zelensky does not release Sitnik, which means he covers up the “corrupt official” and turns a blind eye to the allegedly obvious decision of the Constitutional Court. Second – Zelensky dismisses Sytnik, and full cooperation with the International Monetary Fund on the provision of macro-financial assistance to Ukraine is suspended. Over time, the country slips into default and begins rapprochement with the Russian Federation, which the aforementioned political and oligarchic circles of several countries dream of so much. Moreover, the Western elites may get tired of the constant failure of the Ukrainian side to cope at least on the anti-corruption front. They will get tired of carrying a suitcase without a handle, and they will leave us alone in the war with the Russian Federation.
The second scenario, in turn, will affect the electoral support of Zelensky and become the foundation for his loss in the next presidential race. The oligarchic groups do not need Zelensky as a strong president. Moreover, Medvedchuk is asleep and sees that his ally Yuri Boyko won the elections in 2024. Let me remind you that Sytnik interfered with both the Russian elites and the back office of US President Donald Trump, who considered Artyom Sergeevich a “weapon” of the Democrats.
The only thing I want to note in the end is that when sitting down to play chess with the “grandmasters” who have been running oligarchic empires for more than 20 years with dozens of sponsored deputies in each parliament, one must have experience and strategic vision. It is necessary to diversify political risks, consolidate its status in the West, and resist the influence of the Russian side. Zelenskiy simply lacks the experience to account for the placement of pieces on the 2020 political chessboard. And the decision to dismiss Sytnik could become fatal for his political career.
In the end, the day after the decision of the Constitutional Court, Volodymyr Zelenskyy chose his path, publishing on the website of the office of the President of Ukraine a “philosophical treatise” that they are on the side of a strong rule of law and the distribution of powers between all branches of government. On the one hand, it looks powerful – the President of Ukraine recognizes the CCU’s decision on the unconstitutionality of his predecessor’s decree. On the other hand, we remember very well the attempts of Zelensky himself to usurp power through the appointment, for example, of the head of a new law enforcement body called the Bureau of Economic Security (BEB). At the consultations, the deputies of the pro-government faction did not even want to hear about the fact that the right to appoint the head of the BEB went to the Prime Minister.
As they say, the story of underwear and a cross is still relevant.