Public debate surrounding the reform of the anti-corruption infrastructure has gained momentum once again with the introduction of Presidential Bill No. 13533. This bill, which replaces the hastily adopted and widely criticized Bill No. 12414, aims to strengthen the institutional independence of the National Anti-Corruption Bureau (NABU) and the Specialized Anti-Corruption Prosecutor’s Office (SAPO). In essence, a significant portion of the proposed changes represent a return to the old version of the Criminal Procedure Code, which undoes some of the previous reform measures. However, while the stated goals are undoubtedly important, they mask a number of systemic problems and potential threats that require a thorough and impartial analysis.

Part 1. Stated Objectives: Strengthening the Independence of NABU and the SAP

At first glance, the draft law proposes a series of fundamental changes aimed at ensuring the full procedural autonomy of the SAPO and the inviolability of NABU’s investigative jurisdiction, which is one of the key requirements of Ukraine’s international partners. Let’s examine these changes in more detail.

Key changes regarding the status and powers of the SAPO:

● Granting the SAP the status of a separate prosecutorial body. The draft law proposes amending Article 3 of the Criminal Procedure Code of Ukraine by adding the Deputy Prosecutor General—Head of the SAP—to the list of “heads of prosecutorial bodies.” As a result, the Head of the SAPO will be granted powers that previously belonged exclusively to the Prosecutor General or his deputies in matters concerning the NABU and the SAPO. For example, he will be able to independently appoint a team of prosecutors, overturn unlawful decisions by SAPO prosecutors, and approve key procedural actions, which significantly strengthens his procedural autonomy.

● Elimination of the Prosecutor General’s influence over NABU/SAP proceedings. This is a key change to ensure independence. The proposed amendments to Articles 36, 37, and 284 of the Criminal Procedure Code of Ukraine and a number of others eliminate the powers of the Prosecutor General and his deputies regarding supervision and procedural guidance in cases handled by the SAP. This means that decisions in NABU cases (such as closing proceedings or assigning prosecutors) will be made exclusively by SAPO prosecutors and its head, without the need for approval from the Office of the Prosecutor General.

● A clear procedure for replacing the head of the SAPO. Amendments to Article 8-1 of the Law of Ukraine

“On the Prosecutor’s Office” establish a clear hierarchy: in the absence of the SAPO head, his or her powers are exercised by the first deputy, and in the absence of the first deputy, by the deputy. This prevents a situation in which the Office of the Prosecutor General could appoint a temporary “acting head,” thereby gaining indirect control over the SAP.

Changes regarding jurisdiction and pretrial investigation:

● Establishing the exclusive jurisdiction of the NABU. Amendments to Article 216 of the Criminal Procedure Code of Ukraine (“Jurisdiction”) explicitly prohibit assigning the conduct of a pretrial investigation into a criminal offense falling under the jurisdiction of the NABU to any other pre-trial investigation body. This is intended to prevent the transfer of high-profile corruption cases from NABU to other law enforcement agencies (the Security Service of Ukraine [SBU], the State Bureau of Investigation [DBR], etc.), which was previously a common practice for “dumping” cases.

● Strengthening the role of NABU detectives and the NABU Director. The powers of the NABU Director as the head of the pre-trial investigation agency are clarified. Amendments to Article 40 of the Code of Criminal Procedure stipulate that a NABU investigator is required to carry out orders and instructions only from the SAPO prosecutor. This eliminates any dual chain of command and strengthens the “detective-SAPO prosecutor” relationship.

● Streamlining the procedure for closing criminal proceedings. Amendments to Article 284 of the CPC of Ukraine (“Closure of Criminal Proceedings”) provide that a decision by a SAPO prosecutor to close a case may be appealed directly to the High Anti-Corruption Court (HACC). The closure order itself will require approval from the head of the SAPO, rather than the Prosecutor General. This removes the Prosecutor General as an intermediary and potentially obstructive link in the process while simultaneously strengthening judicial oversight of the SAPO’s activities.

These steps are undoubtedly aimed at creating a procedurally independent anti-corruption hierarchy that is protected from external pressure. However, as always, the devil is in the details and in the issues that the draft law overlooks.

Part 2. Independence, Jurisdiction, and the Role of the Prosecutor General: Unanswered Questions

When analyzing the proposed changes, it is necessary to ask deeper questions that go beyond the formal strengthening of a single institution.

1. Independence: From Whom and For Whom?

When we talk about the independence of NABU and SAPO, we need to clearly answer the question: independence from whom, exactly? In the context of the bill, this primarily refers to

independence from the Office of the Prosecutor General and, indirectly, from the political influence associated with that institution.

But aren’t other law enforcement agencies—such as the National Police, the State Bureau of Investigations, or the Bureau of Economic Security—entitled to the same independence from outside influence? By creating preferential conditions for a single agency, we risk upsetting the balance within the law enforcement system.

Moreover, the independence of the head of NABU or the SAPO from the Office of the President does not preclude corrupt influence on them from other actors—oligarchic groups, foreign entities, or other political forces. And here lies a paradox: exerting influence on the Deputy Prosecutor General—the head of the SAPO—may be riskier, since his position is lower in the hierarchy. Roughly speaking, “working things out” with the Prosecutor General is significantly more expensive and complicated than doing so with his deputy. By weakening procedural oversight by a higher authority, we may, without intending to, lower the “cost” of corrupt influence on the anti-corruption hierarchy.

2. Exclusive Jurisdiction: A Panacea or a Potential Problem?

The ban on transferring cases from NABU to another agency seems logical for protecting high-profile investigations. But no one asks the reverse question: what should be done if NABU itself is investigating cases that fall outside its jurisdiction—which is, in fact, what is happening today?

If NABU is prohibited from taking on cases, how can the issue of jurisdiction be resolved? This creates a situation where the agency may, consciously or unconsciously, violate jurisdictional rules, and there is no mechanism to correct this error. This creates a risk of procedural irregularities and future decisions being overturned on appeal or in cassation precisely because of violations of the rules of jurisdiction.

3. Why aren’t we talking about the Prosecutor General?

If we acknowledge that the position of Prosecutor General is political and associate it with potential pressure from the Office of the President, then why can’t the solution to this issue be the election of the Prosecutor General through a transparent competitive process, specifically with the involvement of international observers? If we already acknowledge such bias, why do we leave this issue unresolved, instead creating an “island of independence” for the SAPO, which only exacerbates the imbalance in the system?

Part 3. A Return to Old Threats: The Inviolability of the Home Under Attack

The most alarming provision of Bill No. 13533 is the amendments to Part 3 of Article 233 of the Criminal Procedure Code of Ukraine,

which regulate entry into a person’s home or other premises without a warrant from an investigating judge.

The previous bill No. 12414, despite all the criticism it received, allowed entry into a home without a warrant for the purpose of obtaining evidence only for an exhaustive list of crimes. These crimes were primarily related to causing harm to life, health, sexual integrity, or terrorism. The wording was clear: “…in cases where the immediate seizure or preservation of evidence related to SUCH crimes is necessary.” This significantly minimized the potential for abuse, particularly in cases related to economic activity.

Today, however, Presidential Bill No. 13533 fully restores the old version of the Code and allows entry into a residence for the purpose of “preserving property” without any restrictions regarding the category of crimes.

In its ruling of October 7, 2024, in Case No. 466/525/22, the Supreme Court equated the concept of “preservation of property” with “preservation of physical evidence.” This has provided—and continues to provide—grounds for entering a residence without a court order for the purpose of “preserving physical evidence,” without any restrictions regarding the category of crimes or their severity.

Conclusions: The Struggle Is for Principles, Not Institutions

This is not about criticism or support; it is about the fact that one must be careful with one’s desires—they may come true.

By supporting one law enforcement agency or another—rather than the rule of law and the impermissibility of violating human rights and freedoms—one must clearly understand that tomorrow, in a month, or a year, the need to seize a couple hundred hryvnias from someone’s pocket will serve as a legal justification to break into anyone’s home.

Credit is due to the activists and young people who are taking to the streets to protest, demanding the repeal of this hastily passed law. Their stance is principled, and their outrage is justified; they point to gross procedural violations in the hastily adopted legislation.

But, as the president’s initiative on Bill No. 13533 shows, their fight is not over. By repealing one controversial provision—which, despite all its flaws, could have curbed abuse of power—society risks a return to the old, even more dangerous version of the law.

The focus of the struggle should not be on law enforcement agencies—such as NABU, SAPO, and others— but on the fundamental principles of the rule of law, human rights and freedoms—including the inviolability of the home and adherence to procedures when making any decisions, which serves as a guarantee of their legality.