The Deposit Guarantee Fund (DGF) went against the interests of depositors and Concord Bank by implementing the illegal recommendations of Oleksandr Zyma, Director of the Legal Department of the National Bank of Ukraine, to withdraw the bank's claims against the NBU. This opinion was expressed in an exclusive commentary to UNN by Serhiy Lysenko, attorney at law, managing partner of GRACERS law firm.
"Implementation is a question for the Fund, its officials who made the decision to implement (Zima's recommendations - ed.)... And the NBU directly - in this case, there is either abuse or abuse of power, it depends on the subtleties of specific actions and qualifications, it is up to the investigator and prosecutor to determine," Lysenko said.
According to him, in terms of the logic of the law on the Fund and the DGF's functionality, the refusal to sue the NBU is nonsense, as it is a question of returning funds to the bank and, accordingly, the DGF's way of compensating citizens.
"That is, the DGF in this case went against the interests of citizens and the bank, in favor of the interests of the NBU," Lysenko emphasized.
He added that during the investigation of the case, investigators should seize documents, analyze them, and decide who is responsible for signing the document from the NBU, according to their powers, and who is responsible for making a decision on the implementation of these recommendations from the DGF.
"Accordingly, all these people involved in these documents are taken, and the issue of whether the officials have committed a crime is decided. Two or three months at most," noted Lysenko.
In addition, according to Lysenko, Zyma's actions may have a conflict of interest.
"This should be checked either by an internal audit appointed by the NBU or by an investigator during a pre-trial investigation in the course of a criminal proceeding that has already been opened. If this inspection is appointed as part of the internal audit procedure, one of the options may be to suspend from duty. Another way is for the investigator to file a petition to the investigating judge to suspend the person, but it should be a suspect," explained Lysenko.
He added that in practice, officials are rarely removed during such inspections - one case out of a hundred.
Recall
The SBI opened a criminal investigation into the possible abuse of power or office, which led to grave 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 is not 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.