Riding on the wave of public expectations after the Revolution of Dignity, on October 14, 2014, the Verkhovna Rada adopted the most ambitious package of anti-corruption legislation. Namely, the Law on the NABU and the Law “On Prevention of Corruption”, which gave rise to the NACP, the electronic declaration system and clear rules for resolving conflict of interest of public officials and so on.
Among laws that were adopted on that day there was less visible the Anti-Corruption Strategy for 2014-2017, which identifies wide range of measures in various sectors that had to significantly reduce level of corruption. The implementation period of that strategy has expired long time ago, and new one has not been approved yet.
According to the law, the NACP must develop such complex and comprehensive document, after which its final approval should be made by the Verkhovna Rada. If previous heads of the Agency did not show special desire to develop quality document, then after appointment of new leadership the situation has changed dramatically. The NACP has prepared new comprehensive document, which is positively received by experts.
In November last year, Members of Parliament adopted the Anti-Corruption Strategy in the first reading and submitted amendments to it, which have now been considered. However, only small part of amendments submitted by Members of Parliament are aimed at strengthening the document. Instead most of amendments show that someone was afraid of ambitious tasks which the NACP proposed to determine for the coming years. And now they are trying to neutralize or weaken them in every possible way.
So, what anti-corruption measures were Members of Parliament most afraid of?
Integrity of justice
The ambitious tasks proposed by the NACP to reduce corruption in the judiciary hinder Members of Parliament in the draft of the Anti-Corruption Strategy the most.
The Agency took into account recent international obligations of Ukraine, in particular ratified by the same Members of Parliament, and provided for the need to ensure integrity of members of the judiciary, the High Council of Justice and the High Qualification Commission of Judges.
In particular, it is explicitly provided that the commission should be established and which would assess integrity of candidates for regarding positions, and current members of the HCJ should undergo one-time assessment of their compliance with integrity standards. As expected, the HCJ itself categorically opposed this. Members of Parliament decided not to lag behind: some suggest not to mention participation of international experts in such commission (despite already mentioned international obligations), and some suggest not to pay any attention to this issue at all. However, even the Venice Commission pointed to the need to quickly resolve issue regarding integrity and ethics of the HCJ and positively noted practice of involving international experts.
Another “innovation” from Members of Parliament is proposal that the Public Integrity Council, which is actually the voice of public in the process of selection and qualification of judges, should be further formed not by public organizations, but by the President, the Parliament and the Council of Judges. This not only replaces public participation in such procedures and destroys the very idea of the PIC, but can also increase political influence in the selection of judges, by allowing the authorities to create “manual” body.
Members of Parliament also do not like application of standard of proving “reasonable doubts” in the selection procedure of judges. Namely: when doubts regarding integrity should be refuted by the candidate himself, by providing certain facts of explanations and their confirmation. In general, the group of Members of Parliament seeks to establish for purposes of qualification assessment of judges unreasonably high standard of proof “beyond reasonable doubt”, which is typical, as a rule, for criminal proceeding and is not consistent with tasks of qualification assessment.
Strengthening of anti-corruption bodies
Significant number of measures aimed at strengthening capacity and accountability of anti-corruption bodies, which through their work can also significantly reduce corruption, caused disapproval of Members of Parliament were reluctant to take.
One of key tasks here is to clarify powers of the head of the Specialized Anti-Corruption Prosecutor’s Office, his acting deputy and his deputy. Previous head of the SAPO Nazar Kholodnytskyi has already resigned, and current acting head is deprived of opportunity to make certain procedural decisions, for instance, to approve reports of suspicion to certain persons or to appoint/change the group of prosecutors in some proceedings. Today, some decisions in such situation can be made only by the Prosecutor General, which neutralizes all provisions on autonomy of the SAPO.
Members of Parliament were equally frightened by establishment of single register of bank accounts, to which some state bodies could have access without court decision. International organizations previously recommended it to Ukraine, as such register corresponds with the FATF recommendations and best practices in other countries. In 2018, establishment of such register or similar tool has become the minimum standard for EU countries, at least 15 of which have already implemented such registers or tools.
Members of Parliament also do not want to include in the jurisdiction of the NABU crimes related to submission of inaccurate reports on financing of political parties, as well as illegal payment or receipt of contributions in favor of political party. When checking reports of the party, the NACP found inaccurate information and sent such conclusions to the Police, but only one lawsuit was transferred to the court in almost 5 years.
Some did not like the idea of implementing the audit for the NABU and the SAPO of their effectiveness with participation of international experts, which is consistent with previous international obligations of Ukraine. The law already provides for participation of experts recommended by donors and determined by the Government for the National Agency of Corruption Prevention. In such assessment similar approach should be used in assessment of other anti-corruption bodies: for the NABU such audit is already provided, but there is no clear indication of its conduct with participation of international experts, and for the SAPO such audit has not been implemented at all.
Eliminating influence of politicians and oligarchs on state enterprises
Members of Parliament oppose implementation of recognized corporate governance standards in state enterprises, including establishment of independent supervisory boards, which should make key decisions on activities of these enterprises and protect them from politically motivated leadership appointments or unjustified dismissals.
Prevention of corruption in medical procurements
Attention of Members of Parliament was also attracted by the fact that it is planned to continue practice of medicines procurments with the participation of international organizations, if necessary. Earlier, this allowed to save millions of hryvnias and thereby provided treatment to much larger number of people. Also, some Members of Parliament do not want established independent supervisory board for organization that would be responsible for conducting centralized medical procurement. And thus the procurement organization would be deprived of political influence from the Ministry of Health.
Reforms in the Antimonopoly Committee of Ukraine
Separate block of the Anti-Corruption Strategy concerns the prevention of corruption in activities of the Antimonopoly Committee, which in case of its ability and independence can significantly complicate lives of Ukrainian oligarchs and monopolists. Members of Parliament do not want activities of the AMCU to become more transparent and investigation procedure become more regulated and predictable.
This week the Anti-Corruption Committee of the Verkhovna Rada began to consider amendments to the Anti-Corruption Strategy, the speed of which is not very impressive. Namely, Members of Parliament managed to consider only 30 of nearly 500 amendments. But even worse fact is when they considered the first ones, not even the most critical amendments, Members of Parliament have already shown reluctance to make implementation of anti-corruption reforms more effective by providing the NACP with effective tools to influence those government agencies that simply ignore their tasks. This shows that maintaining comprehensive and high-quality anti-corruption program document for the next few years in the Parliament will be the difficult task and many Members of Parliament are simply not interested in it.