MUTUAL LEGAL ASSISTANCE WITHIN THE INVESTIGATION OF
CRIMINAL CORRUPTION OFFENCES
Anna Dzhavaha＊

I. SPECIFIC CORRUPTION OFFENCES
Nowadays, the problem of corruption has become time-sensitive and inevitable. Such negative
phenomenon as corruption destroys sustainability of the State by raising the lack of confidence of the society
in the state authorities, reducing public activity in political and social life, and leads to diminishing of the ruleof law and the law in general.
Therefore, detection and demolishing of corruption crimes are issues of a great importance. However,corruption crimes are relatively close to economy and finance, which makes them quite complicated. Also,
one of the difficulties is that corruption is not bound by the boundaries of only one country. It actually has its
own space and spreads far abroad. As a result, in high-profile corruption cases it is nearly impossible togather evidence without using the tools of mutual legal assistance. That is why the detectives of the National
Anti-Corruption Bureau of Ukraine (hereinafter ̶ the NABU) often have to seek assistance and advice fromforeign colleagues.
For example, in order to find out circumstances of crimes the NABU needs information about the final
beneficiaries of foreign companies involved in corruption schemes, the use of money on accounts of foreignbusiness entities and the facts of possible money laundering. Sometimes investigations require conducting
procedural actions with citizens of other states. All this is achieved through the mechanism of international
legal assistance.
At the same time, it is a well-known fact that mutual legal assistance is a cooperation process of a long
duration, but for proper and accurate investigation we should be as quick as possible, sometimes even faster.
In such a manner I am going to cover some problematic issues frequently arising within mutual legal
assistance and provide some examples of successful and fruitful international cooperation.
A. High-Profile Investigations
The NABUʼs investigations turned out to be a series of resonant events ̶ detentions, notices of suspicion,large-scale corruption schemes exposing and unusual court hearings. And now we are going to talk about twoof the biggest corruption cases which were under investigation of the NABU.
1. The Martynenko CaseAt the beginning of December 2015, the investigation into embezzlement of funds of the state enterprisein the energy complex named «Energoatom» worth EUR 6.4 million was launched. Within the case NABUʼs
detectives were examining the facts of acceptance by officials of the Energoatom of an improper advantage
during public procurement procedures. The investigation revealed that the state enterprise suffered losses ofmore than 6. 4 million EUR for overpayment for the equipment purchased from the Czech joint-stockcompany “Škoda JS”. However, to prove this by appropriate evidence and seek all persons alleged for thecommitment of crime it was crucial to gain the registration documents of Škoda JS, commercial documents
regarding the purchase of the equipment, information that showed the money flows and contained the banksecrecy etc. But all mentioned documents and information were in possession of foreign companies andauthorities. As a result, it was important to carry out the procedural actions in the territory of a foreigncountry, so the first MLA request was drafted and sent to the competent authorities of the United Kingdom.

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Chief Specialist-Legal Counsel, International Law Division/Legal Department, National Anti-Corruption Bureau, Ukraine.

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Lately the bank information was received and it became clear that money had been transferred to several
other accounts in different banks in different countries. Also, received information showed the other foreigncompanies which were involved in the corrupt scheme, so new MLA requests were sent to the competentauthorities of the Republic of Latvia, Switzerland and Czech Republic.
Due to the MLA requests NABU got information that after receiving the funds according to agreementswith the SE «NNEGC» «Energoatom», Škoda JS transferred 6.4 million EUR to the account of BRADCREST
INVESTMENT S.A. (Panama Republic), owned by the former MP. Therefore, the other MLA request wassent and consequently the funds in the amount of 86.4 million UAH (3.2 million Swiss francs) were seized at
the account of the abovementioned company at a Swiss bank.
(i) Parallel Investigation
Moreover, under the international cooperation it turned out that law enforcement authorities of
Switzerland and Czech Republic conducted the pre-trial investigations in related matters. When it was
discovered, on the initiative of a Czech representative at Eurojust that a decision was made to organize
several meetings at Eurojust with representatives of Swiss, Czech and Ukrainian law enforcement agencies
which were conducting relative investigations. During the meetings investigators shared information, made aplan about further investigative actions in their parallel investigations and outlined what information they
could share with each other on the basis of MLA requests to get all necessary, appropriate and admissible
evidence.
Furthermore, the pre-trial investigation into the facts of 17. 28 million USD embezzlement of the SE
Eastern Mining and Processing Plant was started in December 2015. In this case several MLA requests weresent to the foreign competent authorities as well. And when some of them were satisfied and NABU got theexecution materials in late April 2017, the detectives of the NABU under the procedural guidance of the anticorruption prosecutors gave a notice of suspicion to the former MP for allegedly committing crimes underPart 1 Article 255 (Creation of a criminal organization), Part 5 Article 191 (Misappropriation, embezzlement
or conversion of property by abuse of official post) of the Criminal Code of Ukraine.
In November 2017, the prosecutor of the Specialized Anti-Corruption Prosecutorʼs Office (hereinafter ̶
the SAPO) decided to join two criminal proceedings. In terms of the unified proceeding 11 persons were given
notices of suspicion, 5 of them were put on the wanted list.
On January 9, 2018, according to the order of the prosecutor of the SAPO the detectives of the NABU
provided the former Member of Parliament (also known as the Former Head of the Verkhovna Rada
Committee on Fuel and Energy Complex) and his defence with access to the documents of the pre-trial
investigation of the criminal proceeding as of the facts of funds embezzlement of the State Enterprise (SE)
Eastern Mining and Processing Plant and the SE «National Nuclear Energy Generating Company«Energoatom».
The former Member of Parliament is suspected of committing crimes qualified under:- Part 3 Article 27, Part 5 Article 191 of the Criminal Code of Ukraine (CCU) (Organization ofembezzlement of property by abuse of official post committed in especially gross amount);- Part 1 Article 255 of CCU (Creation of a criminal organization for the purpose of committing a graveor special grave offense, and also leadership or participation in such organization, or participation of
offenses committed by such organization);- Part 3 Article 27, Part 4 Article 28, Part 5 Article 191 of the CCU (Organization of embezzlement ofproperty by abuse of official post committed in especially gross amount);- Part 3 Article 27, Part 4 Article 28, Part 3 Article 209 of the CCU (Organization of legalization(laundering) proceeds of crime).
In addition, among other suspects there are executives of the SE Eastern Mining and Processing Plant,
State Concern Nuclear Fuel, National Joint Stock Company Naftogaz of Ukraine, Public Joint-Stock Company
United Mining and Chemical Company and structural unit of the SE NNEGC «Energoatom».
Finally, after 5 months of becoming acquainted with the suspects and the defence with the documents ofthe pre-trial investigation, the detectives of the NABU completed investigation of the embezzlement of the197

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funds of the (SE) Eastern Mining and Processing Plant and the «National Nuclear Energy Generating
Company «Energoatom». As a result, they handed over the indictment to the former Member of Parliamentand other suspects. On May 22, 2018, the prosecutors of the SAPO sent the indictment to court.
To summarize the abovementioned during the preliminary investigation of the case 54 MLA requests
were sent to more than 10 foreign competent authorities (United Kingdom, Switzerland, Austria, Latvia,
Lithuania, Czech Republic, Cyprus, Kazakhstan, Italy, Greece, Panama and even Singapore). It is the biggest
corruption case where so many MLA requests were sent and so many foreign jurisdictions were involved.
2. The Amber CaseIn early 2016, the NABU conducted a study to determine the most “corrupt spheres” of the economy. Oneof such spheres appeared to be the illegal amber business in the Rivnenska, Zhytomyrska and Volynska
regions. Based on the gathered information, acting in accordance with the Law of Ukraine “On Operationaland Investigative Activity”, in November 2016 the NABU started a special operation undercover. The “ambercase” became the first one in Ukrainian history in the set of anti-corruption special operations of this level.
(i) Undercover operation
The NABU detectives prepared an undercover operation in cooperation with the Federal Bureau of
Investigation of the United States, which has many years of experience in conducting such actions. In the fallof 2016, a special agent of the NABU, under the pretense of a representative of a foreign company interested
in investing in the organization of extraction and export of amber, began to establish contacts with somestakeholders. According to rumor, the company was ready to invest in Ukraine, but demanded the changes in
the legal regulation of the extraction and export of amber. Further the agent-entrepreneur received
corresponding offers along with the “price list” for services: a total of 15,000 USD. The agent passed thesefunds to MP Maksym Poliakovʼs assistant and the security guard of the MP Boryslav Rosenblat. Both MPs
initiated the changes to the Tax and Customs Codes of Ukraine regarding the taxation of amber extraction
activities and the import of digging equipment. According to the investigation when it became clear that the
adoption of changes “are stuck”, the MP Boryslav Rosenblat offered, on his own initiative, plan “B”: toestablish a company in Ukraine to extract amber in the territory of Zhytomyrska region through PJSC “State
Joint-Stock Company Ukrainian Polymetals” (a subsidiary of Ukrburshtyn State Enterprise). Implementationof this plan would require a number of approvals by officials of the State Geological Cadastre, the State
Service of Geology and Subsoil of Ukraine, the State Forestry Agency, local authorities, the prosecutorʼs officeand the court. In general it touched the abolition of special permits for the use of subsoil, issued to a numberof private companies that have already worked on the areas that, according to the MP, should have beentransferred to a foreign company he promoted. Having no idea of the special operation, the MP even sent a
letter to the NABU with a request to find out how private companies have got permits for the use of subsoil.
In six months it turned out that the plan could not be realized and Boryslav Rosenblat suggested anotheroption ̶ to buy a 30 hectares land plot for digging amber in the Zhytomyrska region. As before, the MP
promised to solve all bureaucratic issues. He appraised this as a “turnkey” project at 200-250 thousand USD.
In parallel, a person affiliated with Rosenblat offered an agent to export about 100 kg of amber, which has
already been extracted in an illegal manner. Subsequently, the detectives seized this “trial” lot during
searches.
In general, within the operation the undercover agent met with the suspects in the case more than 60
times and made over 50 phone calls. The NABU detectives have obtained over 50 court permissions forundercover investigative actions within the proceeding. According to the disclosed materials of investigation,
the positive solving of the issues required financial incentives, as the MP informed the agent during meetings.
According to him, the agent should always have about 100,000 USD at hand It is important to note that theagent have never offered any “encouragement” ̶ in all cases it was the initiative of the MPs.
On June 19, 2017, at a meeting in a restaurant the security guard of Boryslav Rosenblat was detained at
the time when the NABU agent handed him 200,000 USD. On the same day, the assistant of the MP Poliakov
was detained (she, according to the detectivesʼ investigation also played the intermediary role in the funds
transfer to her boss, and to several other persons). As of now the investigation has established eight personsʼinvolvement in committing a crime. On June 20, six of them were given a notice of suspicion. They are two
guards, two MPʼs assistants, a lawyer and a representative of the parliament association “Parliamentary
Control”. Two suspects were placed under house arrest. Another two have been released on insignificant bail.
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The most controversial issue was the abolition of parliamentary immunity of key figures ̶ the MPs
Maksym Poliakov and Boryslav Rosenblat. On June 21, 2017, the Prosecutor General of Ukraine submitted to
the Verkhovna Rada an appeal for permission to prosecute, detain and arrest “key figures” of the amber case.
On July 6-7, at the meeting of the Verkhovna Radaʼ Rules Committee, the MPs and the public watched adocumentary film, made of videos recorded by the undercover agent during the investigative actions.
On July 11, the Verkhovna Rada voted for bringing Maksym Poliakov and Boryslav Rosenblat to justice,
but did not consent to their arrest and detention. On July 12, the Prosecutor General of Ukraine gave noticesof suspicion to Boryslav Rosenblat for allegedly committing a crime under Part 4 of Art. 368 of the Criminal
Code of Ukraine («Accepting an offer, promise or receiving an illegal advantage by an official»), Part 2 of Art.
369-2 (“Trading in influence”), and to Maksym Poliakov for allegedly obtaining illegal advantages (Part 4 of Ar.
368 of the Criminal Code of Ukraine). On July 18, Solomyansky District Court of Kyiv chose a preventive
measure in the form of 7 million UAH bail for Boryslav Rosenblat and imposed on him an obligation to wear
an electronic monitoring device. On July 21, the court chose a preventive measure in the form of 304,000 UAH
for the MP Maksym Poliakov and imposed on him an obligation to wear an electronic monitoring device andsurrender his foreign passports. The detectives of the NABU under the procedural guidance of theprosecutors of the SAPO completed a pre-trial investigation of the criminal proceeding as to the facts ofreceiving an improper advantage for the assistance to a foreign company in the realization of amber mining
in Ukraine (the so-called «amber case»). On February 15, 2018, 6 suspects (including 2 Members of
Parliament) and the defence had been granted access to the documents of the pre-trial investigation.
As we see from the abovementioned examples in NABUʼs high-profile investigations international
cooperation are frequently used. In spite of the effectiveness of international cooperation there are still someissues which arise during preparation and execution of MLA requests.

II. ISSUES CONCERNING MUTUAL LEGAL ASSISTANCE
A. Temporary Access to Objects and Documents
1. Bank Secrecy
As it has been noted earlier, during the implementation of corruption schemes monetary funds and/or
other proceeds of crime with the purpose of laundering are transferred abroad. In this connection, at thestage of pre-trial investigation it is necessary to conduct investigative actions in foreign countries wherebanking institutions attending relevant companies or public officials of state authorities are located.
The only basis for obtaining confidential banking information (cash flow on accounts, banking materials,etc.) is the existence of court permission (court ruling). So, while addressing the competent authorities offoreign countries in the framework of pre-trial investigation with request for mutual legal assistance incriminal matters related to execution of the temporary access to objects and documents, it is also necessary
to obtain court permission (investigating judgeʼs ruling).
Meanwhile, in practice, there is a question regarding the procedure of implementation of suchinvestigative actions as temporary access to objects and documents in the context of international
cooperation because the said question is regulated by the national legislation of Ukraine without taking into
account peculiarities of the investigation in the framework of international cooperation. Thus, in Part 2 ofArticle 562 of the CPC of Ukraine it is indicated that it is required to obtain a Ukrainian courtʼs permission for
temporary access in foreign countries but neither the procedure for obtaining such permission nor its validity
are set by the act. Thus, the order of obtaining court permission and the term of its validity are equally
stipulated by the current CPC of Ukraine either for implementation of the mentioned action on the territoryof Ukraine, or for its implementation abroad in the course of international cooperation.
In particular, when engaging in international cooperation in criminal matters, namely when temporary
access to objects and documents constituting bank secrecy is required, the detective in accordance with theCriminal Procedural Code of Ukraine applies to the court with an appropriate request in which he indicatesthat the mentioned actions are requested in the framework of mutual legal assistance and refers to relevantinternational treaties.
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obligatorily indicating, among others, the term of validity, which may not exceed one month from the date ofissuance.
As it has been mentioned, by the provision of the CPC of Ukraine it is stipulated that the term of validityof the ruling may not exceed one month. However, according to specialized regulations of the criminal
procedural law in the sphere of international cooperation, there are no exceptions to this rule. In practicethere are few cases when problems arise when it comes to implementation of temporary access to objects
and documents constituting bank secrecy in foreign states.
For example, during the pre-trial investigation of the criminal proceedings for use of authority by officialsof the central executive authorities with application of corruption schemes during open tender procurement
for purchase of goods, it has become necessary to obtain access to information from banks located outside
Ukraine. In this case, the detective of the NABU prepares a request to the competent authority of the State toprovide international legal assistance in criminal proceedings. Along with the request, a full package of
documents is prepared including the duly attached certified copy of the investigating judgeʼs ruling on
permission to conduct temporary access to objects and documents containing confidential banking
information. Preparing a request for mutual legal assistance and a package of documents takes time. In
addition, the request and the documents attached to it must be translated. Moreover, it is not always done in
the official languages of the UN, which also requires more time.
Thus, while the request for international legal assistance is prepared, the validity of the investigating
judgeʼs ruling expires. Moreover, after preparation of the request and the documents in accordance with thenational legislation of Ukraine, international documents are sent by international post which also takes time.
Therefore, at the moment when the request for mutual legal assistance is directed to the executor, therulingʼs validity often expires.
As far as for the majority of foreign states, the availability of a court ruling is a mandatory basis for suchinvestigative actions as temporary access to objects and documents, the investigating judgeʼs ruling with
expired term of validity makes it impossible to conduct the investigative action in a foreign state. In addition,in case of getting temporary access after the expiry of the rulingʼs, validity, there is a question as to theadmissibility of evidence obtained as a result of the temporary access to objects and documents during
international cooperation.
So by Article 86 of the CPC of Ukraine it is stipulated that evidence is admissible if it is received in themanner stipulated by this Code. Illegal evidence cannot be used by a court to take procedural decisions; thecourt cannot refer to it in a court order.
Thus, in case the evidence has been obtained as a result of procedural infringement stipulated by the CPC
of Ukraine, such evidence at the request of the parties of the criminal proceedings may be declared
inadmissible, which in turn can completely destroy the public prosecution in court.
Currently, the NABU is drafting a law on introduction of amendments into legislative acts in the sphere of
criminal justice including the Criminal Procedural Code of Ukraine with the purpose of putting the current
legislation into compliance with international agreements and solving problematic issues which arise inpractical application of these standards during pre-trial investigation.
Prior to implementation of appropriate amendments into the current legislation, the central authorities inthe sphere of international cooperation during pre-trial investigation (by the National Bureau and the General
Prosecutorʼs Office of Ukraine) agreed their position that the mentioned court permissions may be used ascollateral estoppel within the international legal assistance. Thus, the availability of the investigating judgeʼsruling shows that the appropriate judicial permission confirming the validity and necessity of the specified
investigative action was received by the pre-trial investigation authorities of Ukraine.
Also, the NABU established cooperation with the competent authorities of certain foreign countries on
the issues of additionally sending new rulings. As a consequence, when the request for international legal
assistance has been filed to the foreign competent authority, in case of expiry of the term of the ruling, thecompetent authority in due course1 sends a notice to the NABU on the need of provision of several rulings,
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the validity of which has not expired yet.
In such a manner, the NABU ensures compliance with the requirements of criminal procedure law during
the execution of investigative acts in the territory of foreign countries, which ensures formation of a strong
evidence base, where the issue of the evidence admissibility will not be one more disputable issue between
the parties of the criminal proceedings, which in its turn will reduce the time of the criminal proceedings andallow completion as soon as possible.
2. Freezing Assets
In spite of the temporary access to objects and documents during the pre-trial investigation of criminal
corruption offences, often there is a need to freeze assets to ensure their availability during the criminal
proceedings. For example, during the preliminary investigation of the criminal proceedings for use of powerby the officials of the central executive authorities by application of corruption schemes during the open
tenders for purchases of goods, information on bank accounts of these officers and related companies wasreceived within mutual legal assistance. In order to ensure indemnification of damages to the State caused by
the criminal corruption offences, the detective who conducts the pre-trial investigation should contact thecompetent authority of the foreign country in which the relevant banking institution is located to request thefreezing of bank accounts of the offender and/or related companies.
Despite the fact that in the majority of international multilateral agreements on mutual legal assistance incriminal matters it is noted that the member countries of such agreements shall afford to each other thewidest assistance in investigations, prosecutions and judicial proceedings regarding offences covered by suchtreaties2 in practice, while application to foreign countries with requests to freeze assets throughinternational legal assistance, a range of practical application issues of certain procedural regulations israised.
(i) The difference between the status of a suspect / accused in Ukrainian legislation and legislation offoreign countries
Thus, part 1 Art.170 of the CPC of Ukraine establishes that the asset freeze is temporary, up to themoment of abolition by this Code, deprivation on the basis of ruling of the investigating judge or court of aright on alienation, disposal and / or use of property, to which there is a set of reasonable grounds orsuspicion to believe that it is evidence of a crime, subject to special confiscation from the suspect, accused,convict, third parties, confiscation from the legal entity to secure a civil claim, recovery from the legal entityof undue benefits received, possible confiscation of property. Asset freezes are cancelled as prescribed by thisCode.
The said provision of the CPC of Ukraine corresponds to the criminal procedure legislation of the majorityof the foreign countries in relation to obtaining court permission and the requirement of criminal offence
status of the suspect or accused person. However, there are some differences in the context of understanding
and grounds to become suspected or accused under the national laws of Ukraine and criminal procedure lawof foreign countries.
In many countries the status of a suspected person is acquired if there is a reasonable suspicion of having
committed a criminal corruption offence by the person and / or involvement of such person in thecommission. In addition, in some countries, the subject of the crime can be either an individual or legal entity.
Under the criminal law of Ukraine, the offender, pursuant to Article 18 of the Criminal Code of Ukraine,
may be only an individual, but measures for legal entities are stipulated. Such measures may be applied only
in case of certain grounds exhaustively listed in Article 96-3 of the Criminal Code of Ukraine, but the use of
these measures does not create a basis for legal entities becoming suspected or accused.
Thus, in accordance to part 1, article 42 of the CPC of Ukraine, the suspect is the person who, in the
In such case it is meant the notification sent by e-mail to the address of the International Legal Department of the AntiCorruption Bureau of Ukraine indicated in the cover letter to the request.
2
Part 1 of Article 46 of the UN Convention against Corruption dd. 2003, General Assembly Resolution 58/4 of n31 October, 2003,
part 1, article 1 of the European Convention on Mutual Assistance in Criminal Matters dd. 1959 (ETS 30).
1

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manner prescribed by Articles 276-279 hereof, was reported on the suspicion, the person detained on
suspicion of a criminal offence or a person in relation to whom there was a notice of suspicion but it has notbeen served because of non-identification of his/her location, but the relevant steps for service have beentaken as stipulated by the current Code for the notifications service.
By part 2, Article 42 it is established that the accused (defendant) is the person against whom theindictment was submitted to the court in the manner provided by Article 291 of the Code.
(ii) Delay in the pre-trial investigation
Thus, when a detective is applying to freeze bank accounts to the competent authority of a foreign state,often there are cases when the requested state sends a letter to provide clarification on the acquisition by aperson in respect of which the preliminary investigation in the territory of Ukraine is conducted, the status of
the suspect or the accused, which in turn leads to delay in the request for international legal assistance andslows the progress of pre-trial investigation.
Meanwhile, the delay in freezing of bank accounts increases the probability of withdrawal of funds ortransferring them to other accounts, which leads to loss of material evidence and makes it impossible toprovide compensation for losses to the State.

III. CONCLUSION
At present, corruption in Ukraine is a quite widespread, negative phenomenon which disturbs peopleʼs
confidence in government, leads to delayed development of the State and decline in the economy.
Consequently, preventing and combating corruption is one of the main vectors of state policy.
Taking into account the specificity of criminal corruption offences, their complexity and permanentdevelopment of corruption schemes, formation of strong evidence by the detectives of the NABU under pretrial investigation is an important instrument in fighting against corruption.
Collection of evidence during pre-trial investigation of high-profile corruption cases is hardly possible
without use of international cooperation instruments. Often in corrupt schemes companies incorporated
under the legislation of foreign countries are involved, and cash received from crime are transferred abroad
for further laundering. However, the tools of mutual legal assistance are very useful and could be fruitful.
Moreover, establishing of contacts between anti-corruption agencies, foreign law enforcement authorities andrelated authorities, strengthening of cooperation between them are quite essential issues for pre-trial
investigation of such cases.
So, today Ukraine faces the task to improve legal framework taking into account the experience andpositive practice of foreign states in the sphere of combating corruption and to develop broad links withinternational anti-corruption and other competent authorities. As a result of these actions, Ukraine will form apositive practice in the sphere of fighting corruption and will develop new effective methods of preventing
and combating corruption.

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