Esprit de Corps: What allows Nasirov and other officials to be reinstated through courts
On Tuesday, December 11, the Kyiv District Administrative Court reinstated Roman Nasirov, chairman of the State Fiscal Service of Ukraine, who had been dismissed by the decision of the Cabinet of Ministers of January 31. Unfortunately, such a return of odious officials to positions through the courts is quite a common thing for Ukraine.
In addition to reinstatement in office, Nasirov is bound to receive compensation for the whole idle period worth around UAH 180,000, according to his lawyer, Liubomyr Drozdovskiy. Moreover, Roman Nasirov didn't lose a chance to make a PR trick out of it by publically pledging all his compensation money for assistance to Ukrainian sailors captured by Russia.
In addition, the reinstated official promised that he would come to work on December 12. True, he did not appear on Wednesday at GFS. He explained that it is necessary to follow the formal procedure - the decision of the Cabinet of Ministers, which allows Nasirov to resume his duties.
Meanwhile, the Cabinet of Ministers said they would challenge the ruling. “The government made an absolutely legal decision to dismiss Nasirov and, of course, will appeal the ruling on his reinstatement,” said MP Vadym Denisenko, the Cabinet's representative to the Verkhovna Rada.
On Wednesday evening, December 12, the District Administrative Court explained that the decision to dismiss Roman Nasirov had been based solely on the official's dual citizenship. In his lawsuit, Nasirov refuted the fact, thus considering the move to dismiss him as illegal. He also insisted that the decision on his dismissal was passed with a procedural violation, since it had not been preceded by a corresponding submission by the prime minister.
The court found that the only document mentioning Nasirov’s dual citizenship is the letter sent by the British Embassy to the Ukrainian minister of finance, which says that NABU [National Anti-corruption Bureau of Ukraine] had been provided certain information on Nasirov, including on his British passport. The letter also promises to provide material proving Nasirov’s dual citizenship.
However, Nasirov's reinstatement in top post at the fiscal service is not the first case where Ukraine's judiciary plays into the hands of various officials embroiled in corruption scandals.
On March 3, 2017, Nasirov was initially suspended from top office in the State Fiscal Service pending investigation. The official was suspected of initiating in 2015-2016, while acting in the interests of the fugitive MP Oleksandr Onyshchenko, unreasonable decisions on tax debt restructuring for three companies, which caused damage to the state worth almost UAH 2 billion. This was also the time when allegations surfaced of the official having a dual citizenship.
It is worth noting that even back then, the official would firmly deny the allegation. However, Judith Gough, a UK Ambassador to Ukraine, has said that Nasirov does own a British passport.
Despite this, the Cabinet was too slow with dismissing the SFS head, leaving him in a "suspended" limbo for about a year.
“I consider it unacceptable that someone who has already become a symbol of corruption and openly violated the law on public service, who has other citizenship besides Ukrainian, has formally remained the head of the SFS for almost a year since the moment of suspension,” said former Finance Minister Oleksandr Danyliuk, who had initially appealed for Nasirov’s dismissal.
In addition, the fact that Nasirov was only suspended and not dismissed, according to the then Deputy Finance Minister Oksana Markarova, did not allow the new chief to take over.
“Nasirov was a very convenient person at top SFS post, both for president and prime minister, that's why they were in no rush to dismiss him,” claims Daria Kaleniuk, an executive director at the Anti-Corruption Action Center.
According to her, in fact, the Nasirov case is an indicator of the failure of the judicial reform. “Courts quite often make unreasonable decisions regarding dismissed civil servants. That's especially so when such decisions are made in relation to the indicted person. For example, the court has been hearing the Nasirov case for several months already. That is, the courts hand down rulings beneficial to certain people,” adds Kaleniuk.
Specifically, in the case of Nasirov, the reason for his dismissal was his "British passport," as already mentioned. However, the Cabinet of Ministers and other authorized departments failed to provide the court with clear evidence confirming the allegation. In particular, according to Judge Natalia Klymenchuk who presides over the case, the court has applied to the relevant authorities several times for the evidence to be handed over, but throughout the whole trial, the latter only confirmed that they had information about Nasirov’s dual citizenship, without giving any documentary evidence.
Since the court failed to establish the fact of the ex-official's British citizenship, it was concluded that his dismissal was groundless.
“If Nasirov was dismissed over acquiring citizenship of another country and the Cabinet of Ministers was unable to prove the fact to the court, there could be no other options for the court’s ruling,” notes Yuriy Radzievsky, a managing partner at Radzievsky and Partners.
On the other hand, the Nasirov case demonstrates the ineffectiveness of reforms of the entire law enforcement sector, because prosecutors in courts also sometimes fail to present to the court the evidence of certain crimes the officials had committed; and before that, investigators collect with procedural violations the evidence of corruption or other misconduct. This is an actual esprit de corps...
Not only Nasirov…
For example, shortly before Nasirov, another top official managed to regain his post through the court. This was ex-head of the State Emergency Service of Ukraine, Serhiy Bochkovsky, who, on March 25, 2015, along with his former first deputy Vasyl Stoietsky, was publicly detained right at the Cabinet meeting. Both were accused of setting up criminal schemes for the purchase of fuel from private companies at inflated prices. According to law enforcers, ex-officials have inflicted damage to the state in excess of UAH 6.6 million.
On April 26, 2018, the Kyiv District Administrative Court reinstated Bochkovsky in office, and on August 7, the Kyiv Appeal Administrative Court upheld the ruling and ordered that the state pay out his salary for throughout the idle period in the amount of more than UAH 546,000. A similar decision was taken by the court in relation to Stoietsky.
A little earlier, in January this year, the court reinstated Leonid Kuriat, ex-head of the Criminal Investigation Department at the Kyiv National Police Department, who was a suspect in the case of a friendly fire that killed five policemen in a failed raid in a village of Kniazhychi (Kyiv region). The reason for the reinstatement was that the Prosecutor General’s Office failed to provide the materials of an internal investigation into the circumstances of the incident. The court also ordered that the National Police pay Kuriata his salary in the amount of UAH 104,000.
And quite recently, in October, the same District administrative court reinstated Denys Antoniuk, chairman of the State Aviation Service, who was a suspect in corruption in granting rights to operate air routes, as well as in monopolizing the aviation market and preventing new airlines from flying to Ukraine. The court ordered the State Aviation Administration to pay him UAH 269,000 in lost salary.
The expert of the International and Domestic Politics Program at the Ukrainian Institute for the Future, Igar Tyshkevych, explains that the reason for so many reinstatement cases is that among all branches of power in Ukraine there is a distorted idea of functions they are to perform. “According to the law, only a court can establish that someone is a corrupt official, or criminal in general. And if someone was fired in violation of procedures, then there are questions to the qualification of performers – deputies, ministers, and judges. If an official has respect for their position or the institution they work at, their position simply turns into a 'feeding place.' The Nasirov case is only a symptom of a disease in a society where neither the president and other branches of government have respect for each other,” Tyshkevych believes.
“Instead of establishing justice, judges are in fact looking for ways to allow representatives of the 'system,' much of whom still remain in power, avoid the incoming blows,” adds Yaroslav Yurchyshyn, executive director of Transparency International.
In general, after such court decisions, it is not surprising that in social networks, albeit with skepticism, some speculate on the possibility of reinstatement of even the disgraced ex-president Viktor Yanukovych. Applying in his case the evidence of “improper” removal from office amid total apathy of law enforcement officials, many of whom are still faithful to the corruption-related ideals, is just a matter of several manipulations of Ukrainian laws. The scheme works.