Liability for wartime corruption should not have a statute of limitations
Crimes against the foundations of national security do not have a statute of limitations. The same should apply to liability for grave and particularly grave corruption crimes committed during wartime. Whoever steals from the public during the full-scale war of independence must answer for his crime whenever and under whatever authority it becomes known.
In order to ensure the inevitability of punishment for corruption during the war, together with David Arakhamia, Olena Shulyak, Oleksandra Ustinova, Yaroslav Yurchyshyn, Yaroslav Zheleznyak, Oleksiy Zhmerenetsky, and other colleagues, we registered a draft law #10100 on amendments to the Criminal and Criminal Procedure Codes.
First, we propose lifting the statute of limitations for grave and particularly grave corruption crimes committed during the full-scale war. Cynical thieves in blood should forget about the hope of "waiting out" or delaying the investigation until the statute of limitations expires. We must give a clear signal that these criminals will be detected and brought to justice even in 10 or 20 years.
Second, we offer to lift the time limits of the pre-trial investigation, set before serving the notice of suspicion to a person (the infamous "Lozoviy amendments"). At the same time, the clause on closing the criminal proceeding in case of expiry of the period of pre-trial investigation after serving the notice of suspicion remains unchanged.
Let me remind you what "Lozoviy amendments" are and why it is time to abolish them. In 2017, the parliament of the previous convocation planted "time bombs" in the criminal process, among which the limitations on the timeline for investigating a crime, starting from the moment the case is docketed in the URPI (or ERDR in Ukrainian - Unified registry of pre-trial investigations) and to the moment when the person is notified of the suspicion.
The public was presented with the noble goal - to protect people from endlessly being "on the hook" of law enforcement. However, the amendments concerned the limitation of pre-trial investigation periods, including in so-called "factual" proceedings - that is when law enforcement is investigating a certain event but has not yet identified a suspect who may be subject to preventive measures or seizure of property and who, accordingly, can be defended from the "law enforcement hook."
In practice, "Lozoviy amendments" are used to shield from liability, especially alleged organizers of corruption schemes. In order to identify the organizers of the crime and collect evidence against them, it is necessary to go after the perpetrators first, obtain the necessary evidence (if different jurisdictions were used to conceal the crime, apply the mechanisms of mutual legal assistance from law enforcement of other countries), and only after that notify the organizer of the suspicion. Sometimes this can take years. Years, that the investigation according to the Lozoviy amendments does not have.
Moreover, differing practices of calculating time limits make it possible to "derail" any case through a very simple scheme: any of the law enforcement officers simply files criminal proceedings based on the known/alleged facts, does not conduct any investigative actions, and closes the case when the time limits "before suspicion" expire. Later, when the same circumstances are investigated by a more conscientious body in another proceeding, the suspect's lawyers begin to argue that due to the previously opened and closed case regarding this fact, the statute of limitations has expired. Therefore, this proceeding should also be closed. At the same time, there are simply no clear rules for calculating the terms before serving the notice of suspicion: judges can deliver diametrically opposite decisions under the same circumstances, which only widens the space for arbitrariness and even corruption.
For example, thanks to the "Lozoviy amendments," there were attempts to close corruption cases, where the indictment was brought against ex-MP Dubnevich. Thanks to these amendments, they can try to "derail" cases related to the illegal extraction of money from Privatbank, in one of which Ihor Kolomoisky is a suspect.
Moreover, "Lozoviy's amendments" almost caused a disaster for investigations of one and a half million proceedings regarding crimes against the peace and security of mankind. Due to this fact, at the end of August the parliament had to urgently render these amendments inapplicable to these crimes.
Thus, the timeline of investigation "before serving the notice of suspicion" is a factitious construction that harms not only the interests of the state in ensuring the inevitability of punishment for crimes but also the victims who due to a mere expiration of the timeline for investigation lose the right to restore justice.
On the other hand, in order to protect the rights of those involved from the "hook" of law enforcement, there is a general statute of limitations for crimes. A person is released from liability after three years have elapsed since the date of committing a criminal misdemeanor, five years - since the commission of a minor crime, and seven and ten years - since the commission of a grave and particularly grave crime, respectively. The statutes of limitations are currently not applicable only regarding crimes against the foundations of national security. We propose to additionally lift the statute of limitations only for grave and particularly grave corruption crimes committed during the full-scale war.
Third, we offer to allow a court session to commence if at least one attorney representing the defendant is present. Currently, the court has to adjourn the session if at least one of the defendant's lawyers is absent. Due to this legislative "loophole," all that the accused needs to do to avoid liability is to arrange for at least one of several of his lawyers to fail to show up at court sessions until the statute of limitations expires. As an example, due to the systematic no-show of one or another lawyer in the "Vovk case" - the former head of the liquidated OASK (Kyiv District Administrative Court), suspected of usurping state power - the preparatory meeting has been going on for over a year and was postponed at least 32 times. Because of this, one of the participants in the "films" (recordings of the conversations in the court on discussing illegal deals), Zenovy Kholodniuk, has already been released from criminal responsibility simply due to the expiration of the statute of limitations. This scheme should also be eliminated.
Fourth, we offer to return the prosecutors the authority to extend the terms of pre-trial investigation after serving the notification of suspicion. Currently, this authority belongs to investigating judges. First of all, the adoption of the draft law will significantly relieve courts. In addition, we will remove another common scheme - delaying the court process regarding the extension of the investigation period until the expiration of the statute of limitations. The period for which the pre-trial investigation period can be extended will remain limited - this will guarantee the respect of the suspects' rights, making it impossible for law enforcement to hold them "on the hook".
Of course, ensuring the inevitability of liability for top corruption, especially committed during the full-scale war, depends not only on the quality of the criminal law. To get there, we need strong, effective, and, most importantly, independent anti-corruption bodies. The Specialized Anti-Corruption Prosecutor's Office (hereinafter - SAPO) remains the most vulnerable link of Ukraine's anti-corruption infrastructure from the point of view of the possibility of interference in its work.
Today, SAPO actually functions as a department of the Prosecutor General's Office. This means that the entire document circulation, including secret documents from investigations, is under the control of the PGO. This model can lead to systemic leaks of investigative information. Together with People's Deputies Oleksandra Ustinova, Yaroslav Zheleznyak, Olena Shulyak, and Oleksiy Zhmerenetsky, we registered draft law No. 10060-2, in which we offer complex solutions to ensure the independence of SAPO and substantially add to the Government's proposals outlined in draft law No. 10060.
First, it is necessary to provide for the functioning of SAPO as a separate legal entity with a separate document flow and budget. Separate legal entities already have all regional prosecutor's offices of Ukraine and territorial specialized prosecutor's offices in the military and defense spheres - so there is no need to reinvent the wheel for SAPO either. By the way, the Ministry of Justice, as the author of draft law No. 10060, also provided for the creation of a separate legal entity for SAPO. Therefore, it also considers the arguments regarding the unconstitutionality of this solution to be irrelevant.
Draft law No. 10060-2 also provides for granting a number of procedural powers to the head of the SAPO. Currently, they are available only to politically appointed Prosecutor General. In particular, it is offer to grant the head of SAPO the right to independently address requests for extradition involved in corruption crimes. Even during our tenure in the parliament, the previous prosecutor general kept some extradition requests requested by SAPO. Levers of political influence on anti-corruption investigations should be eliminated.
Of course, it is necessary to change the procedure for the selection of the head of SAPO, to prevent a shameful several-year delay in the appointment of the head and to establish the decisive role of independent experts, analogous to the procedure for the selection of the head of NABU. In addition, we must introduce an external independent audit, the negative conclusion of which (and not the decision of the commission of prosecutors) should become the basis for the dismissal of the head of SAPO.
Not less important is the implementation of a separate independent disciplinary commission for SAPO prosecutors and internal control management.
If the internal control unit (ICU) is an integral component for ensuring a systematic quality check of the body's team for integrity, then the independent disciplinary commission is a necessary safeguard against external influence on the prosecutors of SAPO by the disciplinary body of the prosecutor's office, which is dependent on the political situation. Just to recall a recent past: this disciplinary body punished with a reprimand the prosecutor in the case of ex-MP Martynenko, Andriy Perov - for allegedly slamming the door into the courtroom. Because of this, Perov has been suspended from the case, in fact, forever, and he had go all the way up to the Supreme Court to reverse the reprimand. The Supreme Court rendered the decision of the disciplinary body illegal. This far-fetched reprimand cost the SAPO prosecutor a year to fight and forever removed him from the case. A separate disciplinary commission, formed by the Prosecutor General from among experts proposed by development partners, will make such arbitrary decisions impossible. The government draft law also contains a similar provision, but our regulations and procedures are written in detail to avoid possible manipulations.
There is no doubt that a real battle will unfold in the parliament around these two draft laws - both regarding changes to the Criminal Procedure Code and regarding the independence of SAPO. As always, my colleagues and I are ready for a professional discussion. At the same time, I invite journalists and all active citizens to observe with special attention whether there are those willing to defend SAPO independence from political appointments or the preservation of schemes to avoid responsibility for corruption during the war.
