Keep Calm and Prosecute the Grafter

After a long era of impunity, state officials seem to be at the edge, when they may be easily tracked down. Today Ukraine is on the front line of the battle against corruption. Rankings put the country alongside Uganda as the most corrupt in the world. In order to tumble down corruption, Ukrainian Parliament decided to implement new institute in the criminal procedure - institute of so called “private prosecutor” (not similar to “private prosecution” the concept of which was described already in this blog).

As the draft law stipulates, this institute launches new anti-corruption platform, where every person or legal entity (which is a victim of a crime or which became aware of the criminal offenses in relation to other people) can initiate a criminal investigation against state official who wants to take аn illegal benefit (bribe, kickback, baksheesh or other payment of such kind) and, moreover, may support the prosecution in court without public prosecutor. The law gives a person the right to gather evidences with all available technical facilities. Such gathered evidence will be declared in the court as valid evidence. If the person proves that state official wants to commit or committed a corruption crime, the court of law can sentence such person to the prison or impose a criminal fine.

The topic of this institution (private prosecutor) has been raised already in this blog in a more skeptical way (link). This was in a sense that disregards to the ability to collect valid evidence, law-enforcement authorities still constitute a bottleneck of the investigation process. My viewpoint is more optimistic about this institution since collection of evidence shall make up to 80% of success. When one corrupt investigator will not be willing to investigate properly, you can find another one, who will do the duty with integrity. Of course, provided you have a copy of your evidence to submit to another investigator. Potential efficiency of this institution is reinforced by the fact that public officials and municipal officials show fear of this law.  

From the utility perspective, private prosecutor institute appears very useful for the business. It is not a secret that most bribes are given by big or small companies to obtain a license or get a permission, bypass taxation, stop illegal influence of state authorities. If legal entity maintains an anti-corruption policy, its “bravest” representative can record a demand for bribe, and send it to the police office or better to Anti-corruption Bureau.

It is a pity, however, that in spite of the business demand to implement this law and Parliament adoption, the President of Ukraine decided to veto the law and return it to the Parliament with his proposals. According to these proposals, the President of Ukraine thinks that private prosecutor institute causes risks of violation of constitutional rights and freedoms and creates a threat to national security that offset the potential positive effect of the Law. It is also noted in the President’s proposals that the private prosecutor institute is vested with broad powers to collect evidence, which were previously inadmissible in the court of law.

Taking into account the President’s proposals, now the Parliament will be either forced to change the procedure of collecting the evidence for the public prosecutor which will mostly diminish the institute of private prosecutor as such or override President’s veto.  

Interesting, that such instrument of struggling with corruption is not new for Europe. For instance, Poland, a close neighbor of Ukraine, also established such institute. The difference between two implemented institutes is that in Poland such own investigation and persecution can be organized only by a representative of a community organization, if there is a need to defend a community interests within the statutory purposes of such an organization, especially in matters pertaining to the protection of human rights and freedoms.

To sum up, I would like to reaffirm private prosecutor institute is a good anti-corruption weapon for a developed civil society in a battle against corruption and low-qualified state officials.  If the Parliament only slightly changes the law or overcomes the veto, companies and individuals will have an opportunity to prove that nobody can exist above the law and simply prosecute the grafter. 

 

Zlata Symonenko is an attorney assistant at a leading law firm practicing law in the area of white collar crimes. She consults inter alia on issues of corruption crimes, including money laundering, smuggling, tax evasion and fraud, as well as crimes against government services and state and municipal authorities. She develops and executes defense strategies for protection of her clients against illegal activities of public authorities.

In addition to her legal practice, Zlata as an expert is involved in drafting amendments and supplements to the Criminal Procedural Code of Ukraine and other laws.

Zlata graduated from Taras Shevchenko National University ofKyiv, law faculty.