Anticorruption in Ukraine: Unbiased Overview

What was really done and what should be completed

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After the Revolution of Dignity in Ukraine in 2014, the prevention of corruption was one of the key goals to achieve. In 3 years, it is still a priority number one for Ukrainian civil society. As media, politicians, and activists are paying a lot of attention to the issue and the informational flow is rather intensive, thus it is hard to eliminate what was really done and what should be completed. Anton Marchuk (analytic officer, NGO “Anticorruption Headquarters”) and Oksana Nesterenko (ACREC) did the research to straighten out the results of Anti-Corruption Strategy commitments.

In October 2014, Verkhovna Rada accepted the Anti-Corruption Strategy for 2014-2017. The document highlighted the core anticorruption state policies, key problems, objectives and the action plan. The Strategy was “the basic document to start and win the war with corruption” as it was hinted by ex-prime-minister Mr.Yatsenuk.

The Plan

As the Strategy has a fundamental nature and was rather general, the State Program plan about the implementation of anticorruption state policy in Ukraine was approved. Both, the Strategy and the Plan, are consisted of:

  1. anticorruption policy development and implementation;
  2. corruption prevention for representative government authorities;
  3. civil service reform;
  4. corruption prevention for executive bodies;
  5. prevention of corruption in public procurement;
  6. prevention of corruption in judiciary system and justice criminal authorities;
  7. prevention of corruption in private sector;
  8. access to public information;
  9. the punishment for the corruption;
  10. creating the negative attitude toward corruption.

Each of the chapters consists of problem overview, goals and action plan to achieve them, while the Program provides more detailed information about tasks, responsible bodies, timeline, and KPI’s.

What was done for the last two years

Anti-corruption policies have been implemented for two years now, so that can be analyzed how public authorities succeeded with their objectives. NGO “Anticorruption Headquarters” and ACREC did a research to clear up the main achievements and present challenges. Overall, the State Program analysis make a controversial impression even though there are a number of positive changes, a lot of serious concerns are also present. The scope of the research includes not only the study of anticorruption institutions, but it also examines the implementation of anticorruption policies in all areas.

Comparing with previous strategies, it is necessary to underline the better level of strategy planning and program implementation as it consists of the list of responsible authorities, deadlines, performance indicators and expected results. In turn, it makes easier to evaluate anticorruption policies and create an opportunity for the proper public control.

According to the current strategy, the action plan is more progressive than previous related documents. First of all, the institutional infrastructure has been improved. For instance, the National Agency on Corruption Prevention was established. Secondly, the high level of public pressure and international attention to anticorruption actions was observed, that played significant role for more qualified and complete implementation.

Table 1. Shaping and implementation of state anti-corruption policies

Achievements Problems
  • The National Agency on Corruption Prevention (NACP) established – a new institution responsible for shaping and implementation of anti-corruption policies
  • Low institutional capacity of NACP;
  • Low efficiency of anticorruption policies among local authorities.


Thanks to EU

The most successful implementation of the objectives coincides with the EU Visa Liberalization Action Plan and the International Monetary Fund Memorandum. In particular: the improvement of legislation on financing of political parties; development of the mechanisms of detention and confiscation of illegally acquired assets; the imposition of financial control officials; the creation of new institutions aimed at the policing (NABU), prevention of corruption (NACP) tracing and identification of assets of crime (ARO / AMO).

Table 2. Creation of integrity of public service

Achievements Problems
  • Updated legislation on public service
  • Implementation of competitive examination procedure for civil servants
  • Creation of new mechanisms to manage conflict of interest among public officials
  • Introduction of electronic declaration system as a primary element for financial control
  • Absence of updates for legislation for civil servants in local authorities
  • Lack of proper financial control and automated verification for electronic declarations
  • NACP’s limitation for official’s lifestyle monitoring
  • Lack of integrity examinations
  • Low salaries for public officials that caused preconditions for corruption

The number of pieces of legislation were enacted and positively evaluated by international specialists. For instance, the Council of Europe experts commended on the mechanism of financial control, provide the positive recognition for state funding of political parties and their accountability, judicial reform with accompanying effective anti-corruption mechanisms etc.

Table 3. Prevention of corruption in representative bodies

Achievements Problems
  • Introduction to state funding of political parties
  • Providing new requirements for financial reporting of political parties
  • Out-of-date electoral law
  • Low efficiency of financial reporting analysis of political parties [1]
  • Insufficient legal determination for conflict of interest resolution among elected officials and their low legal conciseness regarding to unethical conduct by lobbying their private interests;
  • Undetermined lobbying
Table 4. Prevention of corruption in executive authorities
Achievements Problems
  • The introduction of the instruments for evaluation corruption risks to become an effective preventive mechanism for corruption offence in order to prepare local anticorruption policies for authorities and state enterprises.
  • Enactment of corporate governance and public utilities law
  • Slow rate of implementation of corporate execution for public utilities
  • Lack of open information about activities of state enterprises and public utilities
  • Inefficiency authorized representatives to detect and prevent corruption at the units

Tabl 5. Prevention of corruption in judiciary system and justice criminal authorities

Achievements Problems
  • Law improvement related to judicial system, police, and attorney
  • Police patrols reform
  • Inefficient implementation of judicial reform legislation [1]
  • Insufficient and low-quality implementation regarding prevention of corruption at attorney and police
  • The absence of complex reforming of the enforcement authorities
Table 6. Prevention of corruption in public procurement
Achievements Problems
  • Significant modernization of legislation considered to the law “About public procurement”
  • Setting up the ProZorro – system of electronic procurement, that provides open access to the information about public procurements, provides an opportunity to monitor and analyze the activities for the public

 

  • Lack of government control and monitoring for public procurement
  • Undetermined procedure for subthreshold procurement
  • Mismatch of the ProZorro system with other public registers
Table 7. Prevention of Corruption in private sector
Achievements Problems
  • Implementation of partly deregulation and business facilitation
  • Business Ombudsman Council establishing to consider applications from the private sector

 

  • Lack of complexity in regulatory procedures simplification for businesses;
  • Unresolved administrative proceedings (the law “On Administrative Procedure” was not accepted);
  • The lack of a compound reform of state authorities that providing the pre-trial investigation of economic crimes [3];
  • The lack of appropriate facilities to protect the ownership rights;
  • Insufficient legal regulation of activities of the Business Ombudsman.

Corruption as a crime

The biggest progress can be observed in “the punishment for the corruption” block. New law enforcement bodies (National Anti-Corruption Bureau of Ukraine, Specialised Anti-Corruption Prosecutor’s Office) are more accountable for public and also present better results according to a number of court issues in comparing to previous achievements of Prosecutor General’s office and the Security Service of Ukraine in terms of prevention of corruption. However, new institutions are required capacity building, professional escalation and permanent qualification growth among their workers.

On the other hand, the legislation on confiscation and seizure of property management was improved. Currently, a new National Agency for the investigation, detection and management of assets obtained corruption or any other crime has to be launched as soon as possible.

Table 8. The punishment for the corruption

Achievements Problems
  • Establishing of new specialized enforcement bodies: National Anti-Corruption Bureau of Ukraine (NABU) that provides pretrial investigation and Specialized Anti-Corruption Prosecutor’s Office (SACPO) that has the representative role in the courts and proceed prosecutorial oversights.

 

  • The sabotage within the court issues executed by NABU and SACPO
  • Attempt to limit the NABU’s autonomy and independence
  • Withhold legislative initiatives adjusting to increase the productivity of NABU and ensure the inevitability of punishment.

 

Despite the positive moments and achievements, there are serious problems that limit the potential progress of anticorruption policies performance, and thus in fighting with corruption overall. For example, the inevitability of punishment is hard to put forward due to the sabotage from judges with the issues executed by NABU.

It is important to pay attention to the State Orogram evaluation and to maintain it periodically. That will help to correct the deadlines or/and responsible authorities to meet them and will be updated accordingly to urgent activities.

To give an example, the National Agency for the investigation, detection, and management of assets obtained corruption or any other crime also stipulates in the Anti-Corruption strategy, however necessary legislation procedures to establish the institution are not mentioned. Thus is hard to analyze does the government organizations meet all required steps. The annual reporting on the status of implementation of the State Program and Anticorruption strategy is not foreseen, so it makes the process of public control and accountability more complicated.

Even though there are no objectives to evaluate the political will, authors of the research consider that performance of anticorruption policies 2015-2016 showed the lack of political will among political elites to prevent the corruption on the state level. The main indicator for such statement is that majority of public authorities do not actively participate in anticorruption activities. Moreover, there were a number of attempts by representatives of political elites to impede implementation of the important anticorruption mechanism such as electronic declaration. In case of the quality legislative changes, their implementation is questionable (e,g, application conflict between the Supreme Council of Justice and legislator’s idea to agreed on constitutional amendments that require agreement to arrest a judge after committing a crime).

There is still a lack of certainty in political elites’ intense to guarantee proper functionality of enforcement bodies and prevention anticorruption institutions. So in the end, current proclaiming of public officials is just an intent that does not meet the actions.

Table 9. Creating the negative attitude toward corruption

Achievements Problems
  • Design of sociological survey to evaluate the level of corruption in Ukraine (NACP with international partners)
  • Cooperation with several state institutions and civil society in order to undertake an awareness-raising campaign towards anticorruption activities.
  • Lack of proactive approach among state bodies to proceed educational work
  • Formalism in providing relevant activities
  • Poor communication around anticorruption reforms performance

What’s next?

One of the biggest difficulties in anticorruption policy performance was the late commissioning of the National Agency on Corruption Prevention (NACP), that supposed to be the core executor. Due to the puzzled competition for NACP’s board, the full-fledged launch of the institution happened a year after the intended date. As a result, the objectives assumed to be done faster than expected, so NACP do not meet the deadlines. Besides, NACP also inferred reasonable critics from the civil society referred to inefficient performance according to their credentials.

According to the absence of mechanisms to release NACP’s members because of their inefficiency, it is necessary to develop and implement immediately the mechanism of periodic efficiency assessment of the Agency for each of the five key areas of its activities, as well the dismissal of NACP members also should be considered in the case of negative results of the evaluation. The essential problem is the delay time and the infringement of certain terms in implementing anti-corruption measures by other government agencies. The core problem is the delay time and breach of certain terms in implementing anti-corruption actions by other government agencies.

Another essential problem is the lack of legislative changes and gaps that are still present. For instance, the situation with the state funding of political parties is the next: the law allows to get the state budget costs for statutory activities but to do not provide the definition of “statutory activities” that creates legal uncertainty and addition corruption risks.

Practical law implementation also is a low-quality. For example, the financial control of public officials, that is a progressive norm, still ineffective due to the absence of proper IT infrastructure to automate the analysis of e-declarations, while present selective application procedure caused doubts with the quality of its performance.

Table 10. Access to information

Achievements Problems
  • Provide the openness of public funds movement
  • Ensure the publication of information in the open data format
  • Open registers of estate, vehicles and land cadastre

 

  • Lack of proper implementation of the obligation for institutions to provide public information, publish open data, issue the information on the transaction of public funds [4]
  • Absence of updates for legislation about access to public information
  • Poor assurance of open information about activities of Verkhovna Rada and local authorities [5]

It remains relevant and the allocation of adequate financial and material resources authorities in order to fulfill their duties in the state anti-corruption policy.

In the end

All in all, the implementation of the Anticorruption strategy 2015-2016 didn’t fulfill the correct indicators for each block, however, we can observe the number of positive tendencies in some directions.

According to the authors’s opinion, the meaningful threats in the Anticorruption strategy performance and the State Program are still lack of state financial support, low professional competency level and qualifications of the majority of authorized persons responsible for detection and prevention of corruption in government agencies and local self-government bodies, weak political will for efficiency work of anticorruption institutions and mechanisms.

This article is a short overview, based on the research that you night find here.

This year a development of a new Anticorruption strategy will take place to figure out the new state’s priorities in corruption prevention. Authors expects that the process of forming and implementation of state anticorruption policies will take high standards and will take into account all achievements and existing problems.

Notes:

[1] The analysis of financial reports of political parties provided by NACP is still low efficiency and complicated, but we can observe first results. Currently, it observed only the most evident violations, for instance, depositing bypassing the bank account of the party, contrary to the requirements of the law. For more effective control of party’s finances, the electronic reporting for parties and the system with automatic analysis should be implemented.

[2] The idea about the repression measure for judges as preventive detention or home arrest in cases when judge is apprehended after committing the offence or especially serious offence without agreement of the Supreme Council of Justice is a gross violation of constitutional amendments of judges immunity, was presented in the public announcement and it contradicts article 126 Constitution of Ukraine, what was mentioned in the explanatory note for the project on amendments to the Constitution about justice.

[3] For instance, 19% of complaints of the Business Ombudsman office refers to security agencies, it is the second place after tax inspections.

[4] For example, the law “On the open use of public funds” presumed the publication of data from all transactions, however, only 40% of vendors of those who covered by the law, adhere to its requirements more or less, while others even did not create the electronic cabinet through which they have to provide the data about transactions.

[5] For instance, the information about Verkhovna Rada’s budget as the deputy costs for business trips and the accommodations in Kyiv is closed; the reports on business trips and assessments of deputies’ activities (except some cases) are absent; the online broadcasting of parliament committees sessions is not necessary as well as publications of audio materials of the meetings. Moreover, some novations (for example, publication of information about deputies’ assistants) become obligatory based on the obligation of the Head of the VR, so it can be denied easily.

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Автор не є співробітником, не консультує, не володіє акціями та не отримує фінансування від жодної компанії чи організації, яка б мала користь від цієї статті, а також жодним чином з ними не пов’язаний