The relevant bill No. 5459-1 “On Amendments to Certain Laws of Ukraine with Respect to Putting the Status of the National Anti-Corruption Bureau of Ukraine in Line with the Requirements of the Constitution of Ukraine” (Законопроект «Про внесення змін до деяких законів України стосовноприведення статусу Національного антикорупційного бюро України у відповідність до вимогКонституції України») changes the standing of NABU in the system of public bodies, defining it as a central executive body with a special status.
The act also strengthens the autonomy of the anti-corruption agency, providing an exhaustive list of cases where NABU can coordinate its actions with the Cabinet of Ministers:
- approval of the draft of an anti-corruption strategy and adoption of a national programme for its implementation;
- drafting of the bills on the State budget and on making amendments to the State budget providing for the financing of NABU;
- receipt and consideration of the report on the activities of NABU that the agency will have to submit annually to the Cabinet of Ministers under the bill;
- approval of the provisions on the Council of Public Control operating under NABU and on the procedure for appointing its members;
- appointment of the members of the Commission on Independent External Assessment (Audit) of the Performance of NABU and of the Specialised Anti-Corruption Prosecutor’s Office.
In any other cases the supreme executive authority will not be able to interfere with the activities of the anti-corruption agency or the investigations conducted by it, overturn the decisions taken, limit the funding of NABU or influence its activities in any other manner.
Additionally, the bill changes the procedure for selecting the head of the anti-corruption authority. In particular, the act provides for the establishment of a Selection Commission consisting of three officials appointed by the Cabinet of Ministers and three experts suggested by partnering (international or foreign) organisations that support Ukraine in countering corruption. The Commission will select three candidates for the post of the head of NABU and submit the list to the attention of the Prime Minister. In carrying out their duties the members of the Selection Commission are, in particular, entitled to:
- gather, verify and analyse information, including that of restricted nature about the candidates (except for the classified information);
- have temporary free access to the registries and databases held (administered) by public bodies for the selection period;
- request from the candidates and any other natural and legal persons to provide explanations, documents or information necessary to take the decision.
The Prime Minister, on his side, selects one of the candidates within five days after having received the proposals of the Selection Commission and subsequently agrees with the Cabinet of Ministers on his choice.
This model of appointment of the head of the anti-corruption agency takes into account the recommendations of the European Commission for Democracy through Law, is in line with the main anti-corruption commitments Ukraine made to the International Monetary Fund* and was approved by the G7 ambassadors.
The first appointment of the head of NABU under the new rules is planned to be made after the term of the current head expires (April 2022). However, the selection of the candidates to the post will start after the relevant law has entered into force.
The bill also defines the procedure for assessing the performance of anti-corruption bodies: according to the act, from now on an independent external assessment (audit) of the performance of NABU and of the Specialised Anti-Corruption Prosecutor’s Office will be conducted annually. The responsibilities to conduct the assessment are entrusted to a special commission that will be composed of three members appointed by the Cabinet of Ministers based on the proposals of partnering organisations (international or foreign) that support Ukraine in countering corruption. The first assessment of this kind will be conducted a year after a new director of NABU is appointed.
At the moment of writing the bill had not been signed yet; consequently, it had not been published as a law. After its adoption the relevant amendments will be introduced to Law of 14 October 2014 No. 1698-VII “On the National Anti-Corruption Bureau of Ukraine” (Про Національне антикорупційнебюро України).
*The adoption of the bill as of the majority of other novelties of recent years concerning the fight against corruption in Ukraine is one of the conditions for receiving the next tranche of assistance from the IMF.