What Is the Bottleneck of Anticorruption Enforcement? Part I/II

It is needless to say why business is so much interested in a world without corruption. On the one hand, fair rules of the game are essential for doing business. On the other hand, as opposed to local business which can tolerate local corruption risks, international businesses cannot afford such behavior due to broad enforcement of extraterritorial laws such as FCPA, UKBA and others.

Recent developments in Ukrainian anticorruption legislation have shown a great leap ahead. Judge for yourself: Anticorruption bureau, Corruption prevention agency, anticorruption programs, whistleblowers protection, gifts guidance for public officials, compliance officers, registers of corrupt offenders and much more have previously been unknown to Ukrainian law and society. All these notions and instruments come from best world practices which have proven efficiency but the question is: will they work out well after 26 April 2015 in Ukraine realities or if they stay declarations not affecting corruption perception index of the country? Are we playing real or are we pretending?

In my post I would like to argue that current criminal investigation practice is a bottle neck to any positive change that the new anticorruption legislation has brought.

In particular, I believe that currently investigation and public prosecution significantly impairs positive changes for two existing phenomena: (1) monopoly of law enforcement authorities over investigation, in particular evidence collection, as well as prosecution, and (2) old soviet style of conducting investigation.

(1) To stop for a second at a point of monopoly of law enforcement bodies to investigate and collect evidence in criminal cases and prosecute, I think this is pretty straightforward and clear argument. Unfortunately, such monopoly exists and allows for the huge power leverage of law enforcement authorities of what to prosecute and what not to.

As a matter of example, I can tell one real story happened with my friend – attorney, who could not enforce a court decision with a public authority. This is of course an odd case rather than a common practice but he tried all possible means and even opened criminal proceedings against the public official. But as you can predict, the case was not well investigated and prosecuted and he even opened another criminal case in approximately 2 years of battle but he did not achieve the purpose. This narrative shows that giving monopoly to collect evidence and prosecute cases may kill all civil rights’ concepts.

Another opinion regarding state monopoly is that historically, states have proven poor performance with everything they manage from state owned enterprises to enforcement of court decisions. As a result we witness positive changes demanded by society and business such as privatization, private enforcement of court decisions, arbitration courts, public private partnerships and more. The idea behind this opinion is to perhaps establish private investigation and prosecution through detectives and  attorneys.

To conclude this point, keeping monopoly of law enforcement authorities for investigation, particularly collection of evidence, and prosecution unless such authorities are significantly reformed creates a bottleneck to any changes for the better in anticorruption field.

(2) Moving to the old soviet style of conducting investigation argument I would like to mention the opinion of David Sakvarelidze, recently appointed Deputy Prosecutor General. According to him, investigation in Ukraine is very bureaucratic and ineffective. He mentioned a real situation where an investigator collected half of the storage room in toms of documents which are supposed to show a good job done by him, but in fact all those papers did not contain even single solid evidence. According to David Sakvarelidze it will hopefully take a year to incorporate changes for the better.

In fact, investigation methods in Ukraine are poor, while investigators and prosecutors seem to be overloaded with dozens of cases at a time. And this may be another reason why necessary investigating activities are not being conducted or being conducted untimely or inefficiently.

Another strong soviet feature staying with law enforcement authorities is surety commitment within the group as an unwritten rule. I do not need to tell details to the specialists in the field of criminal law. But I will give one example of how it happened in my practice. In the course of investigation the law enforcement authority provided clearly and completely untrue information to the central executive body based on which such body applied further negative sanctions on the client. Later, when such negative consequences where successfully challenged in the court of law, the same central executive body was stating that it is not their fault that the law enforcement authority provided untrue information and that it does not have power to check the facts established by such law enforcement authority. Now, when we look at the earlier picture, before the court confirmed untruth of information, the earlier complaints were sent to the head of law enforcement authority and prosecutors office. The responses said that “internal investigation did not reveal features of provision of untrue information”.

Such practices of self-protection or one-another protection within law enforcement authorities reduces trust to such authorities to objectively evaluate facts against one another. So, this one example shows that enforcement authorities as of now will hardly investigate anything against another law enforcement authority.

To conclude this point, bureaucracy, inefficiency and self-protection are the old soviet customs which create a bottleneck to any changes for the better in anticorruption field.

So, because law enforcement is ineffective, overloaded, incompliant and because it carries a monopoly for prosecution and investigation, Ukrainian society and business in Ukraine can do very little to fight back corrupt officials. In other words, we have to somehow change current criminal investigation practice to avoid a bottle neck to any positive change in anticorruption area.

Leaving the problem on the table I will write a few more lines in some next post about my view of how to cure the ill and elaborate on what could be the consequences.