Input Paper „Figh­t­ing cor­rup­tion in Ukraine“

Foto: Yannick-Morel­li/

Im Rahmen unseres Pro­jek­tes „Öst­li­che Part­ner­schaft Plus“ ver­öf­fent­li­chen wir eine erste Reihe von Input Papers zum Thema Kor­rup­ti­ons­be­kämp­fung in der Ukraine, Geor­gien und Moldau. Die Autoren aus der Region (Kate­ryna Ryzhenko, Ion Guzun, Sandro Kevk­hish­vili) ana­ly­sie­ren die Rolle der Euro­päi­schen Union bei der Unter­stüt­zung der Kor­rup­ti­ons­be­kämp­fung und for­mu­lie­ren Ihre Hand­lungs­emp­feh­lun­gen an die Ent­schei­dungs­trä­ger in Berlin und Brüssel. 

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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