Presidential bill on NABU, SAPO demonstrates sustainability of anti-corruption, but leaves some norms undefined – lawyers
The presidential bill on NABU, SAPO (bill No. 13533) generally corresponds to the idea and task of anti-corruption agencies, demonstrates that Ukraine does not give up the fight against corruption, but leaves some norms undefined, in particular, those related to the penetration of law enforcement officers into premises, according to lawyers interviewed by Interfax-Ukraine.
Partner at the Barristers bar association Denys Ponomarenko said the bill "somewhat expands the powers of the prosecutor general, but with a specification of their narrowing, unlike the previously adopted law, that is, in general, the bill returns a certain autonomy to the SAPO."
At the same time, Ponomarenko said the bill restores the effect of the old version of the Criminal Procedure Code of Ukraine, according to which it was possible to enter a dwelling or other property without a decision of an investigating judge only in urgent cases without specifying them, while the law adopted on July 22 provided for the possibility of entering a dwelling or other property without a decision of an investigating judge only in specifically defined cases.
"In my opinion, the provisions of the law of July 22 were more successful in this matter, as they are more specific. However, the problem of applying the provisions of the Criminal Procedure Code of Ukraine will remain unresolved, neither in the adopted law nor in the [presidential] bill, since in practice the norm on entering a premises began to be perceived as a permit to conduct a search without a decision of an investigating judge, which in turn does not correspond to the essence of Article 233 of the Criminal Procedure Code of Ukraine," he said.
"Today, the legislator should solve this practical problem with a clear provision that Article 233 of the Criminal Procedure Code is not about searches," he said.
In addition, Ponomarenko said the bill, in particular, strengthens the search and extradition of persons who evade pretrial investigation, trial, or serving sentences and prohibits NABU employees from traveling abroad during martial law, except for business trips.
"In general, the bill corresponds to the idea and task of creating and operating anti-corruption bodies," Ponomarenko said.
For his part, Partner at the MORIS law firm, lawyer Stanislav Peliuk said the presidential bill establishes the procedural independence of the head and prosecutors of the SAPO from the prosecutor general, but does not limit the powers of the prosecutor general specifically in terms of managing the prosecutor's office.
"The main direction of the changes is the procedural independence of the head and prosecutors of the SAPO from the Prosecutor General. The amendments to the Code of Criminal Procedure provided for by the presidential bill relate exclusively to the implementation of procedural, not administrative, activities of the Prosecutor General," he said.
"The Prosecutor General remains the head of the Prosecutor's Office of Ukraine," Peliuk said.
In addition, Peliuk also drew attention to the fact that the bill returns the procedure for conducting an actual search without a court decision to the version that was in effect until July 22, 2025.
"The problem of entering a person's home or other property must be regulated by proper judicial control at the stage of legalizing the results of the so-called urgent search. There will be fewer urgent searches when investigating judges refuse to recognize the prosecution as admissible the obtained evidence in circumstances where there is a real lack of 'urgency," he said.
Peliuk said that in addition, the bill excludes the Prime Minister of Ukraine, a member of the government, the first deputy and deputy minister, a civil servant of A category, the director of the State Bureau of Investigations (SBI) and the director of the Bank of Ukraine from the list of persons subject to a special procedure for criminal proceedings.
"That is, such persons will lose additional guarantees. Instead, the head of the SAPO will regain the right to report suspicions to the MP of Ukraine and other top officials. In the current version, taking into account the changes of July 22, such a right is exclusively reserved for the Prosecutor General," the lawyer said.
He recalled that bill No. 13533, in particular, proposes to exclude the right of the Prosecutor General to provide mandatory instructions to the heads of NABU units, which, legally, eliminates his influence on the procedural activities of NABU.
In addition, the bill restores the ban on entrusting the pre-trial investigation of criminal offenses attributed to the jurisdiction of the NABU to another pre-trial investigation body, except in the case of the objective impossibility of the NABU's functioning under martial law, "which minimizes the risk of transferring 'necessary' criminal proceedings from the NABU to another 'necessary' pre-trial investigation body."
For his part, co-founder and Partner at the ASA Group law firm Yevhen Artiukhov said the presidential bill demonstrates that Ukraine is not giving up on the fight against corruption, but is trying to balance it.
"Legally, it is about restoring the independence of two key institutions of the anti-corruption system – NABU and SAPO. In a broader sense, it is about trying to restore the balance between political expediency and Ukraine's international obligations," he said.
Artiukhov said bill No. 13533 provides for "a filter from Russian influence – regular polygraph tests for employees with access to state secrets," which are conducted not by the SBU, but by NABU's internal control. In addition, the internal control units of NABU, SAPO, BES, GPO, SBI, and the National Police must also conduct polygraph examinations of all employees with access to state secrets at least once every two years.
"The polygraph is not a flawless tool: its results are not recognized as evidence in court, and the process itself is sensitive to external factors. But as an element of internal control, it is better than its absence," he said.
Artiukhov also drew attention to the fact that the bill provides for the intensification of the search for assets and suspects, in particular, the Prosecutor General's Office and the Ministry of Justice should intensify their work on the return of persons hiding abroad, as well as on the search and return of assets obtained by criminal means.