The Anti-Corruption Trap: How NABU, SAPO, and HACC Legalize Top-Level Corruption

What if Ukraine’s entire anti-corruption infrastructure is not just a failed reform, but a legally sophisticated special operation? What if its true purpose is not only to provide top corrupt officials with a guaranteed path to freedom, but also to ensure legal laundering of their stolen assets?

This is a cynical scheme built on the deliberate disregard of key provisions of the Constitution of Ukraine. And the most outrageous part is that this massive “laundromat” for protecting corrupt officials and their wealth is funded directly from the pockets of Ukrainian taxpayers.

Step 1: Creating an agency in violation of the Constitution

The first stage of the scheme was the creation of an investigative body which, although operating under a special law, is unconstitutional in essence.

The foundation of the state is the Constitution. Its Article 19 obliges all authorities to act strictly within the limits set by the Basic Law. However, the creators of NABU deliberately ignored this provision.

• Article 6 of the Constitution establishes a clear separation of powers into legislative, executive, and judicial branches.
• Article 113 of the Constitution defines the Cabinet of Ministers as the highest body in the system of executive power.

By creating NABU as an executive body outside the subordination of the Cabinet, its architects laid a fundamental contradiction with constitutional architecture. This is not a theory but a proven fact. The Constitutional Court of Ukraine, in its ruling No. 7-r/2020, directly declared the Presidential Decree on appointing the NABU director unconstitutional, as such powers are not provided by the Constitution. This decision officially confirms that the entire activity of the agency rests on an unconstitutional foundation.

Step 2: Ensuring “poisonous” evidence

This unconstitutional foundation automatically renders all evidence gathered by NABU “poisoned.” According to the doctrine of the “fruit of the poisonous tree”, evidence obtained by an agency acting outside constitutional bounds is inadmissible. This gives the defense a solid argument to invalidate all such evidence.

Step 3: Distorting the role of the prosecutor (SAPO and NACP)

The next element of the trap was the distortion of prosecutorial functions. At first glance, the Specialized Anti-Corruption Prosecutor’s Office (SAPO) appears legitimate as it is formally part of the prosecution system. However, the problem lies elsewhere: anti-corruption legislation unconstitutionally delegated prosecutorial powers to other bodies, in particular the NACP.

• Violation of prosecutorial monopoly: The Law “On Prevention of Corruption” granted the NACP the right to file claims in court to annul legal transactions. This is a direct prerogative of the prosecutor, according to Article 131¹ of the Constitution of Ukraine.
• Legal uncertainty: The provisions of the law granting such powers are excessively vague, violating the principle of legal certainty enshrined in Articles 8 and 19 of the Constitution.

As Deputy Head of the Ukrainian National Bar Association Valentyn Hvozdiy aptly noted, “By delegating constitutional prosecutorial powers to the National Agency, the Verkhovna Rada of Ukraine overstepped its constitutional authority.” Thus, the entire system operates in an unconstitutional blend of functions, calling into question the legality of many of its actions.

How this works in practice: specific cases under threat

The theoretical risks are already a real threat to the most high-profile anti-corruption cases. Let’s consider two examples.

“PrivatBank – Kolomoisky” Case

• Essence: In September 2023, according to NABU’s official statement, the investigation into Ihor Kolomoisky was completed on suspicion of organizing the misappropriation of UAH 9.2 billion. In this case, suspicion was notified, assets were seized, searches and covert investigative actions (wiretaps, surveillance) were conducted.
• Analysis via our scheme: The defense may argue that since NABU is an unconstitutional body (violating Articles 6, 19, and 113 of the Constitution, confirmed by the Constitutional Court decision No. 7-r/2020), all its actions are void. Notices of suspicion, asset seizures, search protocols, and covert surveillance data are all “fruits of the poisonous tree.” Any court adhering to the rule of law will be forced to declare this evidence inadmissible.

“Martynenko (SkhidGZK)” Case

• Essence: The case, which NABU completed investigating back in 2017, concerns former MP Mykola Martynenko and losses at SE “SkhidGZK” exceeding $17 million. The case involved high-profile arrests, searches, and document seizures.
• Analysis via our scheme: Every action by NABU—from demonstrative arrests to seizure of accounting records—was performed by an agency lacking proper constitutional legitimacy. The defense can challenge not only the evidence but also procedural actions themselves as carried out by an unauthorized entity. This provides grounds to declare the entire proceeding illegal from the start.

Expert view: warnings ignored

The problem described is not just an author’s opinion but a matter of concern in expert circles. Even at the stage of creating anti-corruption agencies, some constitutional lawyers and former judges warned of risks. In their opinion, in pursuit of quick results, one must not create agencies operating in a “grey zone” of constitutional legality. Experts stressed that any deviation from the Basic Law will sooner or later be used by defendants to avoid liability, completely nullifying all anti-corruption efforts.

Argument about “independence”: does the end justify the means?

The main argument of supporters of the current model is that NABU’s special status is supposedly needed for its independence from the corrupt political system. However, this approach is fundamentally flawed.

True independence of a law enforcement body is ensured not by placing it outside the constitutional framework, but by clear laws, transparent procedures, proper oversight, and the rule of law. Creating an “independent” body in violation of the Constitution is not independence but lawlessness, inevitably leading to abuses or, as in our case, a legal trap. The goal of fighting corruption cannot justify destroying the constitutional order.

Step 4: Formation of a “defective court”

For the trap to close, an appropriate court was needed. The High Anti-Corruption Court (HACC) was also created based on a special law, but its formation procedure raises well-founded constitutional doubts regarding compliance with Article 5 of the Constitution, which proclaims the people of Ukraine as the sole source of power. The decisive role of foreign experts in selecting judges is delegation of the sovereign function of the state to external forces, which directly contradicts the essence of popular sovereignty.

International experience: a unique Ukrainian mistake?

Comparative analysis shows that Ukraine chose an extremely risky path. Even in Romania, whose anti-corruption directorate (DNA) is often cited as an example, its activity was accompanied by constant conflicts with the Constitutional Court regarding powers and procedures. In Poland, the Central Anti-Corruption Bureau (CBA) has repeatedly been accused of being used as a political tool. This experience proves: creating ultra-powerful agencies outside clear constitutional frameworks carries huge risks for the rule of law.

Step 5: Manipulation of students as a smokescreen

To give this large-scale affair an appearance of legitimacy, it was covered by a shield of supposed public support. For this, a cynical technology was used — turning youth participation in anti-corruption into an immoral tool of influence.

Many students and young activists sincerely believe they fight evil, not realizing they are actually used “blindly” — to legitimize even deeper and hidden corruption schemes. Their energy and trust are manipulatively exploited to create the illusion of public demand for anti-corruption institutions that have actually become shields protecting top officials. The manipulators in this game are precisely those with a direct interest in preserving the corrupt status quo — transnational financial agents linked to oligarchic groups, as well as the high-ranking corrupt officials themselves, who seek to create a system for artificial legalization of their assets. Mass “anti-corruption” actions, often involving students, serve as a cover — meant to distract attention from legal flaws of the new agencies and create a false impression of public support for what is actually a tool of political and economic cover-up.

The real center of corruption has long since shifted to the highest echelons of power — the Verkhovna Rada, Cabinet of Ministers, and Presidential Office. It is there that laws and personnel decisions are made, shaping the architecture of the so-called “anti-corruption trap.”

Opinion: Typology of corrupt laws

Modern Ukrainian legislation passed under the guise of “reforms” often performs the opposite function — not fighting corruption, but legalizing it. These laws can be roughly divided into several groups:

1. 1. Legalization of country plundering: laws transferring land, mineral resources, strategic infrastructure, energy, and banking sectors into private hands close to the government, i.e., members of organized crime groups.
   2. Creation of a repressive system outside popular control: institutions such as NABU, SAPO, and HACC — created outside Ukraine’s constitutional jurisdiction, violating the principle of popular sovereignty. They act not to protect citizens’ rights but to ensure immunity of ruling clans.
   3. Cementing criminal power: adoption of electoral laws that only imitate democracy. In reality, these laws introduced property qualifications, electoral segregation, and made participation of alternative, independent candidates impossible. Thus, only “their own” have access to power.

Electoral segregation in philosophical-legal sense

Electoral segregation violates the principle of equality (both formal and substantive), and therefore contradicts:

1. • international standards (Article 21 of the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights),

   • and the constitutions of democratic states (in particular, Articles 24 and 38 of the Constitution of Ukraine).

Final of the scheme: Freedom and legal withdrawal of stolen funds

Now we put the puzzle together. The corrupt official is convicted. Then the most important part begins. The convicted appeals to the ECHR and proves that he was convicted under a procedure that violates the right to a “court established by law” (Article 6 of the ECHR).

The argumentation will rely on numerous ECHR precedents (e.g., “Sokurenko and Strygun v. Ukraine”, “Guðmundur Andri Ástráðsson v. Iceland”), where the court repeatedly emphasized: if a national body was created in violation of fundamental provisions of national law (primarily the Constitution), it cannot be considered “established by law.”

An ECHR ruling in favor of the complainant triggers a chain reaction:

1. Overturning of the verdict.
2. Dismissal of all charges and, consequently, removal of legal grounds for asset seizure.
3. Return and legalization of assets. The state is obliged to return all property, which now becomes legally clean.

Infographic: “Anti-Corruption Trap” scheme

• Step 1. Creation of an investigative body (NABU) and court (HACC) based on laws contradicting the Constitution.
• Step 2. High-profile investigation and collection of evidence that is “poisoned” from the start.
• Step 3. Conviction of the suspect in the national court amid public applause.
• Step 4. Appeal to the ECHR complaining about violation of the right to a “court established by law.”
• Step 5. ECHR ruling in favor of the complainant, overturning the verdict.
• Result: The suspect is free, and his seized assets become legally “clean.”

The ECHR decision becomes a kind of “certificate of purity” for the stolen money. The corrupt official not only walks free — he turns into a respectable businessman with legal capital. And all this — at the expense of the Ukrainian people.

What to do? Concrete steps to get out of the trap

Stating the problem is not an end in itself. The current situation requires urgent and decisive actions to protect the state’s legal system. It is necessary to immediately:

1. Initiate legislative changes to bring the status of NABU and SAPO fully in line with the Constitution of Ukraine, including clearly defining their place within the system of executive authorities.
2. Review the procedure for forming judicial bodies, eliminating external influence that contradicts the principles of state sovereignty.
3. Conduct an independent audit of anti-corruption bodies not only in terms of financial performance but also their compliance with citizens’ constitutional rights.

Ukrainian society deserves not imitation, but genuine justice — with real courts, legitimate investigative bodies, and honest procedures, not theatrical anti-corruption modeled on colonial subordination.