Illegal attempt to dismiss NABU director

Legal analysis of the illegality of recent attempts to dismiss NABU director (file)

On February 5, 2020, MPs started collecting signatures to dismiss NABU director Artem
Sytnyk from office. As of February 6, 2020, they gathered already 165 signatures. However,
this is a sham process because the procedure of the dismissal of the director of the
NABU and exclusive grounds for its application are clearly defined by the Law of
Ukraine “On the National Anti-corruption Bureau of Ukraine” as a separate guarantee
of independence both for the Bureau and its director.

None of the grounds upon which Sytnyk can be dismissed exist today.

Article 6 of the NABU Law envisages that the director cannot be dismissed according to
the labour law procedure, and the President’s decree on his appointment cannot be revoked
except for the reasons stated in the NABU Law. The NABU Law prescribes that there are
only 13 legal grounds for dismissal of the director. The Parliament of Ukraine can dismiss
the director after the appeal of not less than 150 MPs exclusively upon 7 out of 13 grounds,
which are:
– enacted guilty verdict in the criminal proceeding;
– holding citizenship of another country;
– termination of Ukrainian citizenship or permanent residence outside of Ukraine;
– court decision on illegal dual office holding;
– negative audit report on ineffective work on the position of the director;
– failure to submit annual asset declaration;
– debt on alimony payments for more than 12 months.

Some MPs justify the current attempts to illegally dismiss the director upon the
following grounds: inclusion in the Registry of corrupt officials for an administrative
offence, disciplinary proceedings, violation of labour law or legislation on civil
service. The application of these grounds will violate the law because:

1) the decision to include NABU director in the Registry of corrupt officials for an
administrative offence was based on the ruling of the Rivne Appeal Court as of 17
December 2019. The court brought Sytnyk to administrative liability only. This was
not a guilty verdict in a criminal proceeding against Sytnyk;
2) the Code of Labor Laws and the Law of Ukraine “On Civil Service” apply to NABU
employees (including the director) only in the part that does not contradict the NABU
Law;
3) article 65 of the Law “On Corruption Prevention” prescribes that the disciplinary
proceeding is applied under the procedure “defined by law”. Article 28 of the NABU
Law prescribes that disciplinary proceedings against NABU employees (including the
director) are exclusively regulated by the NABU Law. However, the director cannot
be dismissed for the disciplinary offence as the exclusive list of grounds and
procedure for the dismissal are prescribed by Article 6 of the NABU Law, cited above.

This means that all current attempts to dismiss the director upon any legal
ground or procedure which differs from the ones defined in the NABU Law will
grossly violate the legislation and threaten the independence of the Bureau.