Which appointee can eradicate embezzlement?

February 11 was the last day to apply for the office of director of the National Anticorruption Bureau of Ukraine. The Day has learned from reliable sources that there are more than 100 of those who would like to fight Ukrainian embezzlers. Our readers know very well the names of some candidates, such as Hennadii Druzenko, a jurist and governmental representative in charge of ethnic and national policies, and Halyna Klymovych, former senior investigator into very serious cases at the Prosecutor General’s Office.

Unfortunately, we will not see among the contenders Oleksandr Yeliashkevych “nominated” by Den’s journalists and contributors. There still are doubts as to the government’s sincere intention to conduct a fair contest and allow the director to do what he or she is supposed to. We have cited a lot of reasons why we think so. Among them is a strange behavior of the selection committee about choosing National Anticorruption Bureau director candidates during its first sessions.

So, we decided to discuss this matter with the frankest, in our view, and, paradoxically, the most pro-Ukrainian member of the selection committee. In her column “The Anticorruption Bureau Saga,” a Den contributor even called him “hero of the selection committee’s first session.” It is Giovanni Kessler, Director General of the European Anti-Fraud Office (OLAF).

Our interview will be published when the contest for the position of the head of NABU will be over. And our readers are interested what will be next and how the selection committee will work?

“First stage after the expiration of the deadline will be the examination of all the applications in order to see if all of them meet with the legal requirement as set in the law and in vacancy announcement. This is formal work to see, for instance, if all the applicants have the law degree or they have at least submitted the evidence of citizenship or this kind of legal requirements. Those who don’t meet the legal requirements cannot participate and will be excluded. Then all the applications, CV’s and all the applicants will be published on the web-site for the full transparency.

“The second stage would be the selection among all the admitted candidates, of the first group of candidates to be interviewed. This is based on the merit as it appears from the CVs and from all the documents that these candidates have submitted. And of course, we will choose the candidates which are closer to the ideal model.

“We will interview them first and then we will do a shortlist of the best ones which will be interviewed for the second time in a more detailed and specific way. We will choose on the basis of the second interview two or three that we have to submit with the president. These will be submitted first to the lustration and only then these names will be given to the president. If someone does not pass the lustration process, he or she will be replaced by us with one of the other candidates.”

In interview to Novoye Vremya you said that the selection committee can give a list of candidates to the president not earlier than in a month. Why so long? Is there any option to do it earlier?

“First of all we have to wait for the deadline for the applications. The last day is midnight of February 11. And then we will have for sure more than one hundred candidates we selected with first – evaluation on the documents and then – two rounds of interviews plus the lustration. And these we cannot skip. All this I think is going to last, if we’re lucky, by the end of March. We have to start on February 12 till the end of March. I’m not able to evaluate how long the lustration will last. But this is something which has to be done by law.”

As I understood from your interview, the Bureau will work even later – in April?

“Yes. We don’t know exactly but yes. We will end the appointment procedure by the end of March. And the office has to be built step by step. We cannot imagine that an office comes from the sky. And under the responsibility of the newly appointed boss and with the support from Ukrainian society. It’s a process that will take time.”

Ukrainian MP Hanna Hopko said that there are 50 applicants for the director’s position of NABU. Do you have the same information or, maybe, you have other data?

“Of course, it’s changing everyday. We’re receiving applications everyday. Two days ago we had 87. At the end we will have more than one hundred. I expect it for sure.”

Such a large amount of applicants indicates the trust to the Selection Committee. But I know a lot of noble people whom our readers “nominated” on this position. But these people refused to apply and explained that the first meetings of the selection committee seemed to them to be directed and it looked that the President Administration already has its candidate. Have you got a feeling of manipulation of the selection committee work?

“Nobody can manipulate such a competition with so many applications, with high level members of selection committee, and with everything being the most transparent possible. I don’t know if there are people who have not applied yet because they fear this. If someone is doing so – he is wrong. And I encourage everybody, who meets the requirements, to make an application. I’ve already told you about lengthy and articulated procedures that were put in place. This guarantees a very good selection and a transparent one. And such selection cannot be manipulated. There might be someone, maybe, who dreams or thinks or wishes to do so. But I think that everybody has realized that in this situation with these rules this is not going to happen.”

But one of the arguments of these people was that the first decision of the committee was to allow foreigners to take part in this competition. And I know that you were against such decision and you gave a lot of arguments why selection committee cannot change the law. And I know that your colleagues didn’t listen to you. Why?

“Now it is clear that if you are not Ukrainian citizen, you cannot be admitted to the competition. It is clear from our announcement. And we have more than one hundred applications which shows that there will be many Ukrainians and that among them it will not be difficult to find a good candidate. This does not exclude that someone can have the citizenship just a few days before the expiration of the deadline.

“One has to be Ukrainian citizen by midnight of February 11. That’s clear. And by the law one has to speak Ukrainian language. You might be given a citizenship by a decree but the knowledge of the language one does not acquire by a decree.”

Let’s imagine that if a person gets a citizenship of Ukraine but before this person hasn’t lived in Ukraine. What risks will this person have as a chief of NABU? From your experience as you’re the chief of such institution in EU.

“Well, I’m the chief of an institution which works in 28 member states. So, the citizenship doesn’t play a big role because I’m kind of a foreigner almost everywhere. It’s better to say I’m a European citizen. This issue of the citizenship actually has not to be overstated. I trust that there are many Ukrainians who are able and fit for this job. So far, I don’t know any of the applicants of course – just a number.”

Your surname also was in the press and you were estimated as a potential candidate. Of course you denied such rumors when you agreed to become a member of the selection committee. But it’s interesting to hear your personal story. Did someone from Ukrainian authorities propose you this position?

“No, nobody offered me this post. But in any case, I couldn’t have accepted even if I would have been honored of receiving this proposal. I wouldn’t accept it not only because I don’t meet the legal criteria, but also because I have already a job in European Union which is important.

“Secondly, I think and I hope I can contribute to the Ukrainian vital and important battle against corruption in many different ways.”

“I liked Ukraine Incognita. TOP 25. I haven’t read all of it yet, but I think it’s very interesting, because in the Western Europe, we still have to uncover Ukraine. It’s largely unknown, given the recent past history. Ukraine, in its history, in its culture is different. Also, there is a kind of superficial view, or understandings, and Ukraine is being discovered in various aspects. So, that’s why I found this book highly interesting and enlightening” /  Photo from Hanna HOPKO's Facebook page

Mr. Kessler, what would you advise to the future director of NABU? What would you personally do to fight political corruption in Ukraine? And who should be jailed for it?

“The NABU would be mainly investigating body. You fight against corruption in very different ways. By criminal investigation, by prevention, by administrative measures, by cultural… it is also a cultural fight to change the culture.

“So, what should the NABU do? The NABU has to do investigations primarily. My advice would be to start an investigation which has high significance on the one hand and on the other hand has promising possibility to succeed. At the beginning you might have hints, several indications. You never know how it will build up. It depends on your ability, collaboration you can get from your partners, and a little bit of luck. So, my point is – it would be wrong to start with a name or with another name – you start with a significant investigation that has good possibility to come to an end in a successful way. And it also depends on a very important factor which I would call a ‘trust factor.’ Trust in the NABU which is a key element for the effectiveness of the investigative body. It has to be trusted. If the body is trusted it would be easier to find evidence, cooperation among the people or among the people who might have information. It is a key factor for the effectiveness. If you manage to achieve something, than you achieve more and more because you get trusted.

“That’s the priority: to get the trust of the people, and also the trust of international partners. And also, it would be important indirectly and more in general for the country, because if Ukraine is able to show that something really works, it would be beneficial not only for the NABU, not only for the fight against corruption, it would be beneficial for democracy, and for the unity of the country.”

Where should NABU start its work: from the investigation of the incumbents, or from the former president, Yanukovych, or even further, from president Kuchma?

“Don’t start with a name. Start with what you have at hand, which can give you a better possibility to succeed.”

The selection committee announced a contest at a time when the Verkhovna Rada is currently changing the Law.

“The Law is not yet finally approved; the second reading will be, as I understand, this week. Regarding the selection process the changes for us should be minimal, I mean, they clarify things, and that’s it.”

But it is important for people who apply.

“I think there are two important points to be made. The first issue is the setting up of a specialized office in the prosecution service to deal with the corruption cases, which would be the essential partner of the NABU. Such an office, if not necessary, would be very, very important, and it can influence the performances of the NABU, because it’s not just the work of investigators, but it is the work of investigators and prosecutors. So, having a specialized branch or a specialized office would be very beneficial and important. It has to be done properly in the Law.

“The second issue is the seizure of the assets, also without a conviction. It is also an interesting and important tool, we have it also in Italy. But it’s a tool that has a ‘handle with care’ sign written on it, because it is a dangerous one. So, these tools are important, but they have to be put in the Law with the very carefully crafted legislation. My suggestion would be to drop it for now from this law on the NABU and to do a special law, specifically addressing this issue. And this can be done over the next weeks and months, it doesn’t change anything. I wouldn’t do this hastily, but that’s for the Rada to decide. In any case, it has to be done carefully.”

What is your assessment of the current law on NABU? Does it allow us to effectively fight corruption in the high echelons of Ukrainian parliament? Does it allow the NABU to be an independent body? Does it give enough power, or maybe it gives it overpower, and NABU can become a tool to punish people who have different thoughts and opinions?

“I think that the present law is a good balance. Of course, it’s not enough to have a law to be independent, and there is always the risk that if you give power, power is misused, if you don’t give power, power is not used and you don’t do anything. So, you have to find a balance. The one that is there is a good balance. Of course, NABU is not everything; you need NABU, which is criminal investigation, you need the prosecution, and you need the judges at the end. Or you do an investigation and then what? It has to go in front of the court, normally. So then, a wider strategy encompasses all these aspects. In any case, NABU is a good, balanced tool to start with.”

You have also one more role in Ukraine, as a representative of the European body which fights fraud, and its mission is to monitor how the European Union’s money gets disbursed. Do you have any questions about how the money from the European Commission given to Ukraine is used here?

“OLAF tackles possible episodes of fraud and corruption, or other crimes affecting the expenditure of EU money generally, by doing investigations on specific instances (facts), in all the EU Member States and in third countries, Ukraine included.”

Does the European Union have more questions of this kind for the incumbent Ukrainian government, in comparison with the previous one?

“We have more need to control these funds than in the past. Why? Just because there is incomparably much more European money flowing into Ukraine. Which, of course, increases our attention very much.”

Who gives you consultations in Ukraine on these questions?

“Actually, over the past months, we have discussed among ourselves in the European Union and with the Ukrainian partners in the government, in the Rada, and also in the civil society, the possibility to set up a dedicated, specialized, small investigative body in Ukraine on fraud and corruption affecting the EU funds, just dedicated to this. A joint Ukrainian-EU investigative body. The idea has been well accepted in Ukraine, but now it’s under decision in the European Union. Anyway, it would require a formal agreement between the European Union and Ukraine to set up this joint investigative group, which would be international, Ukrainian and European, and would be something special. The point is that a decision has not been made yet in the European Union on the establishment of this. Of course, it would not replace NABU and other national tools, which are very much needed and which we will continue to support. It would be, in case we do it, something additional and focused specifically and only on the EU financial tools.”

Do you have any consultations with civil society, NGOs?

“First of all, the European Union here is represented by the delegation which comes in daily contact with all Ukrainian institutions and society. They are our antennae and our representative here. Plus, within the European Commission we have a Support Group for Ukraine, a specialized group on supporting Ukraine, on specific projects, they are colleagues of ours, of course we meet them, and we know them. And then, they also meet with the civil society. Plus, we have the Adviser Mission to Ukraine on law enforcement, which is a resident EU mission in Ukraine. And of course, I myself have been here a few times together with other colleagues from the Commission, and I have had meetings also personally with institutions and, on some occasions, with some of these civil society groups.”

It is interesting for our readers how the body that you represent operates: can it advise, for instance, the European Union not to give money to Ukrainian authorities or other countries, because they are corrupt?

“Not so drastically, but when we finish an investigation, we can issue recommendations. These recommendations can be of different nature: judicial or financial. For instance, when we establish a fact of fraud or corruption within a specific project or funds, we issue recommendations to the financial service of the European Commission, which has given funds. And the recommendation is to recover the money (or a part of the money) which has been disbursed as an effect of corruption or fraud. Then the money is recovered. We cannot ban a country from receiving it. It may be very little, or it may be a lot, on a specific fund, on a specific instance. We recommend it to be recovered, and it is normally recovered.

“A general decision about supporting a country by giving it more or less money – these are decisions which are made at the political level. At the political level there are political considerations. They also take into account the concrete situation and the results of our investigations. But there is no automatism regarding this.”