European integration is a key priority of Ukraine’s foreign policy, which envisages systematic reforms in all spheres in accordance with the norms and standards of the European Union.
One of the main problems in the research aspect and one of fundamental importance for the EU is systemic corruption in the public and private sectors in Ukraine. This all-encompassing phenomenon that pervades the whole of society, threatens national security, resists the constitutional and social order, and is one of the causes of Ukraine’s “shadow” economy. It penetrates the power institutions, involving in the ranks of individual politicians and public figures. Corruptive acts affect all spheres of public life, lead to the spread of organized crime, create social tension, create a disillusion with the population’s ability to carry out organizational and practical measures to overcome the systemic crisis and revive Ukraine.
Against this background, the relevance of corruption research, as one of the obstacles to Ukraine’s becoming a full-fledged EU member, does not need further justification.
Accordingly, the purpose of this paper is to analyze the effectiveness of the current anti-corruption policy of Ukraine and the actual state of fulfillment of a number of EU requirements to Ukraine, set in the framework of the Association Agreement, where the latter has undertaken to solve problems in the research field.
- A review of recent research
Corruption as a systemic phenomenon and a brake factor in Ukraine’s European integration path has been explored by many scholars, both domestic and foreign. In particular, they are A. Voloshenko, M. Glotov, T. Grek, M. Demyanenko, E. Nevmerzhitsky, O. Onishchuk, I. Pyatak, O. Snigirev, I. Yatskiv, and many others. However, their experience was related to the related and related acts stated for consideration by us.
- Summary of the main provisions
The extremely threatening scale of corruption is explicitly stated in recent official documents of Ukraine’s major international partners. Yes, the EU Parliament stated in its resolution of 17 July 2014 (2014/2717 (RSP)) after signing the Association Agreement with Ukraine that “corruption and a colossal shadow economy are widespread in Ukraine” (para. 19 in resolution of 15 January 2015 (2014/2965 (RSP)) The EU Parliament expressed the view that an anti-corruption strategy, the primary objective of which is zero tolerance for corruption, is urgently needed by Ukraine, and called on the Ukrainian authorities to take measures to “eradicate systemic corruption” (par. 13). PACE continues to evaluate in its Resolution 2145 (2017) oruptsiyu in Ukraine as “widespread” and expresses about this particular concern.
In a number of EU requirements for Ukraine under the Association Agreement, the latter is required to address a number of problems in the research area. Let’s try to explain this in more detail.
First, national anti-corruption strategies and state programs for its implementation had to be updated.
Currently, new principles of state anti-corruption policy in Ukraine are envisaged by the Law of Ukraine “On principles of state anti-corruption policy in Ukraine (Anti-corruption strategy) for 2014 – 2017“. In order to implement them, as well as to properly implement the new basic anti-corruption legislation, in particular the Laws of Ukraine “On Corruption Prevention” and “On the National Anti-Corruption Bureau of Ukraine”, the Cabinet of Ministers of Ukraine approved the State Program on Implementation of the State Anti-Corruption Policy in Ukraine 2015 – 2017.
The purpose of this act was to create a system of prevention of corruption manifestations on the basis of new principles of formation and implementation of anti-corruption policy, to periodically review and ensure compliance with current corruption challenges and threats. The expected results were expected to be the following:
1) The National Agency for the Prevention of Corruption (hereinafter referred to as NAPC) is established and ensures the effective performance of its functions in the field of anti-corruption policy;
2) formation of anti-corruption policy is carried out on the basis of analysis of qualitative data on corruption;
3) monitoring of the implementation of anti-corruption policy is carried out by a system of authorized bodies (Verkhovna Rada of Ukraine, National Council on Anti-Corruption Policy under the President of Ukraine, Agency), which ensures effective and timely correction of anti-corruption policy;
4) the public is actively involved in the formulation, monitoring and implementation of anti-corruption policies.
However, the duration of this Anti-Corruption Strategy is coming to an end and, according to the findings of the NAPC Analytical Report on its implementation, only two-thirds of the envisaged measures have been implemented.
In general, during 2014-2015, a number of anti-corruption laws were adopted, including the introduction of an e-procurement system, an electronic system of declaring property, income, expenditures and liabilities of a financial nature, opening state registers on information about final beneficial owners. In 2014, the Law of Ukraine “On the Prosecutor’s Office“ was adopted, in June 2016 – the Law of Ukraine “On Judiciary and Status of Judges“, in December 2016 – the Law of Ukraine “On the High Council of Justice“. Also, a number of state bodies have been formed whose activities are aimed at combating corruption, in addition to the NAPC mentioned above, the National Anti-Corruption Bureau of Ukraine (hereinafter – NABU), the National Agency of Ukraine for Detection, Investigation and Management of Assets Obtained from Corruption and Other Crimes, Specialized anti-corruption prosecutor’s office. However, not all of these authorities received sufficient material and human resources in a timely manner and started work.
Accordingly, despite some positive developments, the legislative and institutional framework for the development and implementation of anti-corruption policies has not been fully completed in Ukraine. That is why the Government approved the draft Law of Ukraine “On Anti-Corruption Strategy for 2018-2020” developed by NAPC with the purpose of defining a set of measures aimed at reducing the level of corruption in Ukraine and further promoting anti-corruption initiatives in the country. However, this act has not officially entered into force and is in a state of correction.
The next requirement is to ensure the functioning of the NAPC and to strengthen its institutional capacity to verify the electronic declarations of persons authorized to perform state and local government functions.
NACC as a central executive body with a special status, the activity of which is directed and coordinated by the Cabinet of Ministers of Ukraine, was established by the Resolution of the Cabinet of Ministers of Ukraine of March 18, 2015 №118. Given the legal nature and scope of competence in the system of state bodies of Ukraine, the NACC is given the role of preventive anticorruption institution responsible for the formation and monitoring of the implementation of anti-corruption policy in the country, prevention and settlement of conflicts of interest, implementation of financial accounts role in the civil status of public servants and monitoring of their way of life, state financing of political parties and implementation of others, defined by the Law of Ukraine “On Prevention of Corruption“ and international obligations of Ukraine, preventive anti-corruption mechanisms, including ensuring maintenance of the Unified State Register of Declarations of Persons, authorized to perform the functions of state or local self-government, and the Unified State Register of persons who have committed corruption or corruption-related offenses.
One of the main reasons for criticism of the NAPC’s activities was the problems with the electronic declaration system. NACC should keep a register of declarations, check them and send the results to law enforcement. In fact, the body is one of the most powerful anti-corruption tools created by the reform. However, for 2 years, the NAPC could not provide effective verification of the declarations.
Ukrainian officials were required to submit their 2016 E-declarations by April 1, 2017, but in March 2017, many officials complained that they could not complete the e-declarations on the NAAC website because the Unified State Register of Declarations was malfunctioning. That is, in 2016, for unclear reasons, they refused automatic verification. For the next two years, all inspections were conducted manually – in 2017-18, 615 decisions were made, or 0.03% of all declarations submitted. And since the beginning of 2019 approved the results of 1474 complete checks of declarations, of which 989 are selected by the automatic system.
The NAPC press service assures that the Unified State Register of Declarations of Persons Authorized for State or Local Government Functioning works without fail and all filed declarations should be displayed in the register. However, as an example, the public is all aware of the absence of this year’s declaration by the head of the board of Ukrposhta (Igor Smilyansky).
In addition, the NAPC has other “weaknesses”:
- in particular at the legislative level, the issue of ensuring that it has adequate access to the information necessary to exercise its powers is not resolved;
- lack of automated access to the Hereditary Register, the Unified Power of Attorney and the Civil Status Register;
- the lack of an approved anti-corruption strategy for 2018-2020;
- unsatisfactory state of filling of state registers and databases, including the lack of complete information in the state registers and databases necessary for automated verification of the information stated in the declarations;
- absence of territorial bodies, etc.
By the way, according to the poll of 184 respondents, of which 80% are representatives of international companies in 2017, 36 % of respondents believe that the level of corruption has decreased in the last year (in 2016, it was 47%). According to the majority of respondents, NABU is the “anti-corruption champion” in 2017. Half of the respondents consider the launch of electronic declarations the biggest success in the anti-corruption fight over the last year.
Another requirement for Ukraine was the need to amend the legislation on NABU’s right to remove information from communication channels.
By a resolution of the Cabinet of Ministers of Ukraine on March 2, 2016, the Government included NABU in the list of state bodies, which were granted the right to carry out the development, manufacture, implementation and purchase of special technical means for removing information from communication channels, and other means of silently obtaining information. The resolution was adopted to ensure the proper performance of the tasks assigned to NABU. The document introduces changes to the list of entities that may be state customers of the development, manufacture and purchase of special technical means for removing information from communication channels, other means of silently obtaining information.
At the same time, the Cabinet resolution does not resolve the issue of NABU’s ability to independently remove information from communication channels. National Police and Security Authorities had the exclusive right to withdraw information from the communication channels by the end of 2019, in accordance with Article 263 of the Criminal Procedure Code of Ukraine. The Bureau received information from its communication channels using the capabilities of the Security Service of Ukraine. And only on October 4 that year changes were made to Art. 263 of the Code of Criminal Procedure, according to which NABU and the State Bureau of Investigation will be authorized to remove information from transport telecommunication networks, which is in fact the right to be heard.
The next requirement is to improve the level of qualification of senior officials, authorized to perform the functions of state or local self-government, civil servants, officials of local self-government in preventing and combating corruption.
For the most part, such activities are regulated by specialized professional training programs, which are developed with the aim of developing skills of preventing and combating corruption offenses among employees of state authorities and local self-government bodies. According to the information contained in the National Report on the Implementation of the Anti-Corruption Policy in 2018, during the year, the above-mentioned entities participated in trainings, trainings, seminars and seminars organized by the NACC, as well as in events organized by prevention and prevention experts. combating corruption in Europe, Asia, as well as representatives of international organizations, both in Ukraine and abroad.
The latest urgent modernization concerned the adoption of legislation on the Supreme Anticorruption Court of Ukraine (hereinafter referred to as YOU) and ensuring its proper functioning.
In particular, on June 07, 2018, the Verkhovna Rada of Ukraine adopted the Law of Ukraine №2447-VIII “On the Supreme Anticorruption Court“, which entered into force on June 14, 2018, except for sub-item 3 of Section VI, “Final and Transitional Provisions“ of Law № 2447-VIII (amendments to the CCP of Ukraine), which comes into force from the date of the beginning of the work of YOU. In accordance with the recommendations of Transparency International Ukraine for 2018, the adopted Law broadly complies with the recommendations of the Venice Commission and provides for the key role of international experts in the selection of judges, as well as for the use of ProZorro for small-scale privatization, rental of communal real estate and Wagons.
The task of this court is to administer justice in accordance with the legal principles and procedures of the judiciary in order to protect a person, society and the state from corruption and related crimes and judicial control over the pre-trial investigation of these crimes, respect for the rights, freedoms and interests of persons in criminal proceedings , as well as resolving the issue of the recognition of unfounded assets and their recovery into government income in cases provided for by law, in the procedure of civil proceedings.
In general, the existence of YOU is an exam for Ukraine. Its creation lasted more than three years. In the Memorandum of Understanding between Ukraine and the European Union, ratified by Law № 2613VIII of 08.11.2018, the approach to determining the startup time of the SAC was a little more soft, since it did not involve binding to specific months and years. Due to the creation of the necessary legal and organizational conditions, from 2 August 2018 to 6 March 2019, a competition was held which resulted in the submission by the High Qualifications Commission of Judges of recommendations for candidates for the posts of judges to the High Council of Justice. Thereafter, (March 18), the High Council of Justice submitted to the President of Ukraine a motion for the appointment of judges. And on April 11, 2019, the President of Ukraine issued Decrees №128/2019 and №129/2019, which appointed him to the posts of Judge and Court of Appeal of this Court. However, the appointment of judges by itself has not yet completed the process of its creation.
On May 7, 2019, a panel of judges of the Supreme Judicial Court decided to open the institution on September 5. The fact is that, as of the date of the meeting, no apparatus had been formed, the staff of which could secure the admission of proceedings for their consideration by judges.
At the same time, some recommendations have not been implemented, in particular the role of the public in the process of reviewing candidates for judicial office has not increased. The competition for judges was held with the participation of the Public Council of International Experts instead of the Public Council of Integrity. The first one consisted of 6 international experts who had an impeccable business reputation.
All of the above makes it possible to formulate a conclusion that the current state of fulfillment of Ukraine’s obligations to prevent and counteract corruption in Ukraine is satisfactory, due, first of all, to the lack of strategic planning in this area, since the absence of the approved anti-corruption strategy for 2018 – 2018 discloses as clearly as possible. Activation of the eradication of systemic corruption began only now, at the end of 2019. And this is despite the fact that the Association Agreement officially came into force on September 1, 2017.
The EU requirements for Ukraine, set out in the framework of the said Agreement, are being fully implemented in the field of research, but the quality of such actions is somewhat doubtful. While the Ukrainian community will react passively to corruption, authorized entities will act within the limits of their capabilities and in conditions that do not meet the standards of European law – to expect positive changes in vain.