Input Paper “Fight­ing cor­rup­tion in Ukraine”

Foto: Yannick-Morel­li/ shutterstock.com

As part of our project “Eastern Part­ner­ship Plus”, we are pub­lish­ing a first series of input papers on the topic of anti-cor­rup­tion reforms in Ukraine, Georgia and Moldova. The authors from the region (Kateryna Ryzhenko, Ion Guzun, Sandro Kevkhishvili) analyse the role of the Euro­pean Union in sup­port­ing the fight against cor­rup­tion and for­mu­late their polit­i­cal rec­om­men­da­tions for deci­sion-makers in Berlin and Brussels.

By Kateryna Ryzhenko

In 2014, major anti-cor­rup­tion reforms were launched in Ukraine. Polit­i­cal changes opened the country up to suc­cess­ful inter­na­tional expe­ri­ence, a begin­ning of sys­tem­atic reforms and active engage­ment by civic society. Several key achieve­ments and reforms since then should be pointed out. Full-scale anti-cor­rup­tion infra­struc­ture has been created in Ukraine: over the past seven years, Ukraine has devel­oped an anti-cor­rup­tion infra­struc­ture for the detec­tion and inves­ti­ga­tion of high-level cor­rup­tion offenses and the pun­ish­ment of those who commit them. The fol­low­ing “the classic ele­ments” of this infra­struc­ture are worth men­tion­ing here:

The National Anti-Cor­rup­tion Bureau of Ukraine (NABU) is a law enforce­ment body estab­lished in 2015 whose purpose is to conduct pre-trial inves­ti­ga­tions into top-level cor­rup­tion cases and to cleanse the gov­ern­ment from cor­rup­tion in order to enable the for­ma­tion and devel­op­ment of a suc­cess­ful society and effi­cient state. The Spe­cial­ized Anti-Cor­rup­tion Prosecutor’s Office (SAPO) is mainly respon­si­ble for sup­port­ing and over­see­ing crim­i­nal inves­ti­ga­tions launched by the NABU. All cases from NABU-SAPO are adju­di­cated by the High Anti-Cor­rup­tion Court of Ukraine (HACC). The launch of this court was one of the great­est anti-cor­rup­tion achieve­ments in 2019.

In addi­tion to the law enforce­ment and judi­cial bodies, the anti-cor­rup­tion infra­struc­ture includes two central exec­u­tive bodies that have a special status: the National Agency on Cor­rup­tion Pre­ven­tion (NACP) is respon­si­ble for the devel­op­ment of anti-cor­rup­tion policy and pre­ven­tion of cor­rup­tion and the National Agency of Ukraine for detec­tion, inves­ti­ga­tion and man­age­ment of assets received from cor­rup­tion and other crimes (ARMA: Asset Recov­ery and Man­age­ment Agency) was estab­lished with the aim of iden­ti­fy­ing, tracing and man­ag­ing the rel­e­vant assets.

In addi­tion to estab­lish­ing anti-cor­rup­tion insti­tu­tions, Ukraine carried out numer­ous reforms in dif­fer­ent sectors involv­ing the cre­ation of reg­istries, dig­i­tal­iza­tion of processes and the opening of new pos­si­bil­i­ties for cit­i­zens and busi­ness. The most suc­cess­ful of these are:

  • Dig­i­tal­iza­tion and the imple­men­ta­tion of new rules in the public pro­cure­ment sphere – the elec­tronic public pro­cure­ment system Pro­Zorro, which is based on the OCDS stan­dard, is inno­va­tion that has gar­nered inter­na­tional atten­tion. The system makes infor­ma­tion on tenders avail­able to every­one. Ukraine has won recog­ni­tion around the world as a leader in pro­cure­ment reform.
  • The elec­tronic auction system Sale is used to for the liq­ui­da­tion of assets from insol­vent banks, for small-scale pri­va­ti­za­tion and lease of com­mu­nal and state prop­erty. Now, when a public or munic­i­pal asset or prop­erty is being sold, every­one has the oppor­tu­nity to bid for it.

Pro­duc­tive coop­er­a­tion between the state, busi­ness and civic society orga­ni­za­tions made the imple­men­ta­tion of the above­men­tioned reforms possible.

Obvi­ously, not all efforts are going smoothly and/​or speed­ily. There are several chal­lenges, and they must be addressed in the near future. The fol­low­ing are exam­ples of issues con­sid­ered problematic.

Pro­ce­dures for select­ing the heads of anti-cor­rup­tion insti­tu­tions must be reassessed in order to elim­i­nate pos­si­bil­ity of polit­i­cal influ­ence. Cur­rently, the terms of the appoint­ments of the heads of the SAPO and the ARMA are not very long, which sig­nif­i­cantly limits their effec­tive­ness. A new com­pet­i­tive selec­tion pro­ce­dure for the posi­tion of the NABU direc­tor is slated to begin in less than a year, but parts of the legal pro­vi­sions reg­u­lat­ing this process have been declared uncon­sti­tu­tional by the Con­sti­tu­tional Court of Ukraine.

There is con­tin­u­ing pres­sure on inde­pen­dent insti­tu­tions. For example, due to flaws in the leg­is­la­tion gov­ern­ing the prosecutor’s office and the limited powers of the acting head of the SAPO, the Pros­e­cu­tor General has been able to inter­fere repeat­edly in high-profile NABU-SAPO inves­ti­ga­tions, under­min­ing the inde­pen­dence of these insti­tu­tions. The Pros­e­cu­tor General did not pass up the oppor­tu­nity to study and even influ­ence the pro­ceed­ings in the high-profile cor­rup­tion cases of 2020. Secur­ing an effec­tive system of checks and bal­ances that will ensure the inde­pen­dence of the anti-cor­rup­tion infra­struc­ture from admin­is­tra­tive and polit­i­cal pres­sure should there­fore be a priority.

The unre­formed judi­cial system remains the great­est threat to the sus­tain­abil­ity of reforms in all the areas. In fact, no progress has been made on judi­cial reform in the past two years. Last year, the Pres­i­dent and Par­lia­ment tried several times to start a painful process of change. A first attempt at judi­cial reform, in the form of a draft law sub­mit­ted by the Pres­i­dent, had been adopted by Par­lia­ment in 2019, but key pro­vi­sions of that leg­is­la­tion were declared uncon­sti­tu­tional by the Con­sti­tu­tional Court of Ukraine on 11 March 2020.

The next attempt to launch the reform was also ini­ti­ated by the Pres­i­dent in the form of several draft laws sub­mit­ted to Par­lia­ment. Cur­rently await­ing final­iza­tion and the second reading, they have been mer­ci­lessly crit­i­cized by the Venice Com­mis­sion and the expert com­mu­nity. A high stan­dard of integrity on the part of members of self-gov­ern­ing judi­cial bodies, who are elected with the par­tic­i­pa­tion of the inter­na­tional com­mu­nity and civil society experts, remains a current require­ment of the IMF, is the subject of a rec­om­men­da­tion of the Venice Com­mis­sion and is demanded by the public.

In addi­tion to the above­men­tioned issues, attempts to disrupt and nullify anti-cor­rup­tion achieve­ments in the field of public pro­cure­ment in the past several years also provide cause for concern. In par­tic­u­lar, both the Gov­ern­ment and the Par­lia­ment are trying to amend the leg­is­la­tion and imple­ment local­iza­tion in public pro­cure­ment, an approach which, accord­ing to researchers in the field, would drive the domes­tic economy into a dead end. More­over, this ini­tia­tive would violate com­mit­ments under­taken by Ukraine in the Ukraine-EU Asso­ci­a­tion Agree­ment and in the Agree­ment on Gov­ern­ment Pro­cure­ment within the frame­work of the WTO.

Which tasks should take pri­or­ity?

Ensur­ing the inde­pen­dence and capac­ity of the anti-cor­rup­tion infra­struc­ture. Car­ry­ing out a trans­par­ent and polit­i­cally impar­tial process for the com­pet­i­tive selec­tion of heads of anti-cor­rup­tion insti­tu­tions. Secur­ing an effec­tive system of checks and bal­ances ensur­ing the inde­pen­dence of anti-cor­rup­tion infra­struc­ture from admin­is­tra­tive and polit­i­cal pres­sure. Pro­vid­ing anti-cor­rup­tion bodies with the leg­isla­tive tools nec­es­sary for the full imple­men­ta­tion of their functions.

Forming a pro­fes­sional and inde­pen­dent judi­ciary. Elect­ing (appoint­ing) a fair com­po­si­tionto self-gov­ern­ing judi­cial bodies with the par­tic­i­pa­tion of the inter­na­tional com­mu­nity and public experts. Sub­mis­sion to Par­lia­ment of a new com­pre­hen­sive draft law taking all the rec­om­men­da­tions from the Venice Com­mis­sion on the reform of the Con­sti­tu­tional Court into account and the prompt con­sid­er­a­tion thereof.

Intro­duc­ing a system for the man­age­ment of public assets that ensures trans­parency and account­abil­ity and safe­guard­ing the further devel­op­ment of the pro­cure­ment sector. Dis­clos­ing infor­ma­tion about state-owned enter­prises. Devel­op­ing a new reg­is­ter of state-owned enter­prises as an acces­si­ble and con­ve­nient tool for visu­al­iza­tion and search of enter­prises. Chang­ing the legal frame­work for the man­age­ment of state assets. Improv­ing the areas of pro­cure­ment in line with inter­na­tional com­mit­ments (refrain­ing from adding to the list of con­tract types not falling within scope of the Law on Pro­cure­ment). Ensur­ing effec­tive control and mon­i­tor­ing of pro­cure­ment by the State Audit Office.

What is the EU’s role in sup­port­ing the fight against cor­rup­tion in Ukraine?

The Euro­pean Union has been one of the main sup­port­ers of reforms in Ukraine in general and of the estab­lish­ment of anti-cor­rup­tion leg­is­la­tion and insti­tu­tions in par­tic­u­lar. Com­bat­ting cor­rup­tion was always a primary focus of con­di­tion­al­i­ties attached to a number of macro-finan­cial assis­tance pack­ages and played a crucial role in the visa lib­er­al­i­sa­tion action plan.

Every year the Euro­pean Com­mis­sion issues a report assess­ing Ukraine’s con­tin­u­ous ful­fil­ment of visa lib­er­al­i­sa­tion require­ments on the basis of its mon­i­tor­ing activ­ity. Def­i­nitely an impor­tant doc­u­ment, this thor­ough report con­tains an analy­sis and high­lights certain results and trends, includ­ing in the anti-cor­rup­tion sphere. The devel­op­ment of anti-cor­rup­tion indi­ca­tors, which could be based on the visa lib­er­al­i­sa­tion action plan (VLAP), and the quar­terly mon­i­tor­ing of those indi­ca­tors would be a way to obtain an even better and fuller picture on a con­tin­u­ing basis. This kind of mon­i­tor­ing might also be a helpful tool for inter­na­tional part­ners and national civil society orga­ni­za­tions to use in their advo­cacy work.

Macro-finan­cial Assis­tance (MFA) is a form of finan­cial aid that the EU has extended to Ukraine since the out­break of the crisis in early 2014. Ukraine and the EU jointly signed a Mem­o­ran­dum of Under­stand­ing (MoU) out­lin­ing the policy pro­gramme attached to the MFA oper­a­tion. This pro­gramme, based largely on the reform agenda pursued by the Ukrain­ian author­i­ties, covers a broad range of areas, includ­ing public finance man­age­ment, gov­er­nance and trans­parency, the energy sector, social safety nets, busi­ness envi­ron­ment and the finan­cial sector. Impor­tant anti-cor­rup­tion con­di­tion­al­i­ties are attached to the assis­tance in the MoU.

Con­sid­er­able finan­cial support has been pro­vided newly created insti­tu­tions and civic society organ­i­sa­tions by other Euro­pean pro­grammes as well, such as the funding from EU Anti-Cor­rup­tion Ini­tia­tive (EUACI). Funded by the EU and Denmark and imple­mented by the Danish Min­istry of Foreign Affairs, the EUACI is the EU anti-cor­rup­tion program in Ukraine. This ini­tia­tive began a new four-year phase in May 2020 with a 22.9 million-euro budget.

On 25 January 2021, the G7 ambas­sadors to Ukraine made public a set of clearly artic­u­lated rec­om­men­da­tions as to action Ukraine should take next in its fight against cor­rup­tion. In their “roadmap” for strength­en­ing anti-cor­rup­tion insti­tu­tions and reform­ing the judi­ciary, the G7 ambas­sadors acknowl­edge the fact that recent deci­sions by the Con­sti­tu­tional Court of Ukraine have created a threat to the country and its demo­c­ra­tic reforms. They go on to iden­tify a number of pri­or­i­ties on which they believe Ukraine should con­cen­trate, and propose dead­lines for their imple­men­ta­tion. Specif­i­cally, they iden­tify the fol­low­ing as the most urgently needed steps: 1. re-estab­lish­ing with a firm legal basis the anti-cor­rup­tion pro­vi­sions recently declared uncon­sti­tu­tional; 2. prevent the Con­sti­tu­tional Court from causing further harm while it is being reformed; and 3. ensure all nom­i­na­tions to key judi­cial and law enforce­ment bodies are trans­par­ent, merit-based, and credible.

It is nec­es­sary to under­line that the pri­or­i­ties iden­ti­fied by the G7 are fully sup­ported by the civil society experts and activists. Unfor­tu­nately, the major­ity of the rec­om­men­da­tions have not yet been imple­mented. Although the dead­lines pro­posed by the G7 ambas­sadors lie in the past or will soon do so, the pri­or­ity actions the roadmap pro­poses are still very rel­e­vant. Further support for and insis­tence on the urgent neces­sity of these pri­or­i­ties on the part of the EU would def­i­nitely be ben­e­fi­cial for Ukraine and its anti-cor­rup­tion efforts.


Kateryna Ryzhenko
Head of Legal, Trans­parency Inter­na­tional Ukraine

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