The actions of the Director of the Legal Department of the National Bank of Ukraine, which indicate possible unlawful interference of the regulator in the activities of the Deposit Guarantee Fund, may have serious consequences. This opinion was expressed by Dmytro Kasyanenko, an attorney at law at "Kasyanenko & Partners" in an exclusive commentary to UNN.
"It is worth paying attention to the key aspect of this case: the existing conflict of interest. Oleksandr Zyma, being the chairman of the administrative board of the Deposit Guarantee Fund, dealt with issues that directly affect the conduct of litigation in which the NBU is a party. This creates grounds for accusations of using his official position to influence decisions that may be beneficial to the NBU," Kasyanenko said.
He explained that, according to Article 3 of the Law of Ukraine "On the Individual Deposit Guarantee System," the Individual Deposit Guarantee Fund is an institution with separate property that belongs to the state and is under its economic management. In view of this, according to the lawyer, the Fund has the right to independently own, use and dispose of its property in accordance with the law and the purpose of its activities.
Since the Fund is a legal entity under public law, it has the right to judicial protection of its rights and interests. This means that the Fund can act as a plaintiff or defendant in court proceedings, file lawsuits and conduct litigation within its competence, Kasyanenko added.
He also explained that, in accordance with its statutory tasks, the DGF may file lawsuits in court in cases where it is necessary to protect its property or the interests of depositors, especially in situations involving insolvent banks, their liquidation processes, or when it is necessary to appeal against actions or decisions that adversely affect the functioning of the DGF and the performance of its functions. In addition, given that the DGF is a property management entity, it is authorized to protect the interests of depositors in courts, in particular by filing claims for compensation for losses caused by the actions of third parties.
"In general, the analysis of Article 3 of the said Law gives grounds to assert that the Fund has the full right to go to court to protect its rights and interests, as well as the interests of depositors under its protection. The lawsuits filed by Concorde Bank against the NBU question the legality of the fines imposed, which may indicate that the NBU's actions are biased or unlawful. If these lawsuits were filed before the introduction of the interim administration, the Deposit Guarantee Fund, having taken over the management of Concord Bank, should take all necessary measures to protect its rights, including litigation," the lawyer emphasized.
At the same time, Kasyanenko believes that the NBU's position, as evidenced by the letter signed by Oleksandr Zyma, may be considered an attempt to interfere with the activities of the Fund, which by law is supposed to protect the rights of depositors, including litigation that may affect the amount of compensation.
"In accordance with the above, from a legal point of view, the NBU's actions indicating possible unlawful interference with the activities of the Deposit Guarantee Fund may have serious consequences. In particular, if it is proved that these actions have led to severe consequences for the state's economic system or the rights and interests of depositors, this may lead to liability under applicable criminal law. Given the importance of ensuring the stability of the banking system and protecting the interests of depositors, especially under martial law, every case of possible abuse of power should be thoroughly investigated. This applies not only to specific actions of officials, but also to systemic problems in the interaction of state bodies and institutions responsible for the financial stability of the country," the lawyer emphasized.
Kasyanenko also added that it is important that the actions of the Deposit Guarantee Fund remain transparent and independent in order to effectively fulfill its functions in protecting the rights of depositors.
At the same time, Maksym Sheverdin, Head of Criminal Law Practice at LCF Law Group, explained in a commentary to UNN that in investigating this category of cases, it is first of all necessary to establish whether the actions of a person have an objective and subjective side of the crime.
That is, according to him, in order to bring a person to justice for abuse of power or official position, it is important for the investigation to establish the content and scope of powers and identify the range of official duties that determine the competence of the official. The investigation also needs to establish what damage was caused as a result of the illegal actions of such a person.
And the subjective side is that such an official had a direct intent and a selfish motive - to obtain an unlawful benefit for himself or herself or another person.
Recall
The State Bureau of Investigation opened criminal proceedings on the fact of possible abuse of power or official position, which led to serious consequences, by the director of the legal department, Oleksandr Zyma. The criminal case concerns a letter from the National Bank to the DGF signed by Zyma, who is also the chairman of the administrative board of the Deposit Guarantee Fund. In the letter, he recommended that the DGF drop four lawsuits that Concorde Bank had filed against the NBU before the decision to liquidate the bank and introduce a temporary administration was made. The DGF implemented Zyma's recommendation.
Last year, for the first time in Ukraine, not only bankrupt banks but also profitable institutions were subject to liquidation and license revocation, including Concord Bank. The process of depriving a banking institution of its license takes place without a court. Of course, owners and shareholders of banks may appeal against the decision of the regulator, the NBU, after it has made a decision to liquidate the bank, but in general, the process of withdrawing a banking institution from the market, once it has been launched, is irreversible.
In addition, the issue of liquidation of a profitable bank has not been regulated in Ukraine. According to Olena Sosedka, co-owner of Concord Bank, at the time the regulator announced the decision to liquidate the bank, the financial institution had enough highly liquid assets to make all the necessary payments in 2-3 weeks. But the process of bank liquidation is strictly regulated by law and can generally take up to three years.