NABU will receive an expanded list of top suspects: from heads of regional state administrations to supervisory boards of state enterprises

The Verkhovna Rada is preparing to review the Criminal Procedure Code. The new draft law No. 15334 not only expands the list of suspects for NABU but also grants the SAP unprecedented autonomy in international cooperation and resolving jurisdictional disputes.

The course towards European Union membership requires Ukraine to take steps to ensure the effectiveness of its anti-corruption infrastructure. The draft law, initiated by members of parliament, aims to implement the guidelines of Section 23 "Justice and Fundamental Rights" of the "Foundations" cluster.

The main idea of the project is the delineation of powers, protection of NABU's jurisdiction from improper redistribution of cases, and simplification of international legal cooperation procedures.

What will really change?

The draft law proposes targeted amendments to several key articles of the Criminal Procedure Code of Ukraine regulating jurisdiction and international legal cooperation.

Subject composition of NABU's jurisdiction

First of all, the legislators propose to clarify the list of persons whose criminal offenses fall under the jurisdiction of NABU detectives according to part 5 of article 216 of the Criminal Procedure Code of Ukraine. 

The current version contained gaps regarding the leadership of advisory bodies. The new version adds as subjects: the head of a consultative, advisory, or other auxiliary body or service established by the President of Ukraine, as well as their first deputy and deputy. 

Instead of the outdated wording about military-civil administrations, a norm is introduced regarding the leadership of modern local defense structures. Cases concerning heads of military-civil administrations and chiefs of regional and Kyiv city military administrations along with their deputies will also fall under the jurisdiction of NABU detectives.

In the list of senior officials, alongside the police and customs, officials of the Economic Security Bureau of Ukraine and the State Bureau of Investigations are separately included.

Additionally, the circle of persons in large state-owned enterprises where the state's share exceeds 50% is expanded. Now, not only heads but also deputy heads, members of supervisory boards, and members of executive bodies (boards, directorates) become subject to jurisdiction. 

SAP

The greatest media resonance was caused by statements from one of the project authors that the document supposedly creates for the first time a mechanism whereby in parallel investigations by NABU and another body, the fate of the case is decided by an SAP prosecutor.

How the system functions now:

According to the third paragraph of point 3 of part five of article 216 of the Criminal Procedure Code, NABU detectives, in order to detect and stop crimes under their jurisdiction, may, by decision of the NABU Director and with the consent of an SAP prosecutor, investigate offenses that formally fall under the competence of other bodies.

The second paragraph of the same point gives the SAP prosecutor the right by their own order to assign proceedings to NABU's jurisdiction if the crime caused (or could have caused) serious consequences to state or public interests.

The current part five of article 218 of the Criminal Procedure Code establishes that any dispute over jurisdiction in cases that may belong to NABU is resolved by the Prosecutor General or directly by the head of SAP.

The claim that a procedural mechanism for determining jurisdiction did not previously exist is premature. Prosecutors previously had tools to resolve jurisdictional disputes and consolidate proceedings. However, the draft imperatively establishes SAP's priority in disputes with other bodies (DBR, SBU, National Police) if the case concerns NABU's jurisdiction, excluding interference from the Office of the Prosecutor General.

What will really change with the adoption of the draft:

The new draft law No. 15334 introduces an instant response mechanism. Now, if an investigator from another body discovers a parallel investigation of the same facts, they are obliged to notify the prosecutor in writing no later than the next working day.

The prosecutor has 5 working days to determine jurisdiction, and after issuing the order, the materials must be transferred in full to the other body within 10 days.

International cooperation and Joint Investigation Teams

One of the EU integration requirements is the direct participation of anti-corruption bodies in international processes without unnecessary bureaucratic links. The draft law supplements article 571 of the Criminal Procedure Code with the following content:

...in criminal proceedings, the pre-trial investigation of which is conducted by the National Anti-Corruption Bureau of Ukraine, the issue of creating joint investigation teams may be considered by the Deputy Prosecutor General — head of the Specialized Anti-Corruption Prosecutor's Office.

The head of SAP receives independent authority to create joint investigation teams for investigating cross-border corruption crimes of high-ranking officials.

Extradition procedures for NABU cases

Previously, the head of NABU had to submit requests for extradition exclusively through the Office of the Prosecutor General, but now they send documents to the Office of the Prosecutor General or SAP with simultaneous notification of the Prosecutor General.

Previously, sending a request to a foreign state was the exclusive prerogative of the Prosecutor General or their deputies. The new version clearly defines that in NABU cases, the extradition request is sent by the Prosecutor General or Deputy Prosecutor General — head of SAP (or persons performing their duties).

Draft law No. 15334 indeed contains a number of important procedural changes, but its positioning as a new or unprecedented step seems somewhat exaggerated. A significant part of the mechanisms aimed at protecting jurisdiction and resolving jurisdictional conflicts between law enforcement agencies already existed in criminal procedural legislation and were applied in practice. The draft law does not create a new architecture of the anti-corruption system but significantly increases the institutional independence of SAP.

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