Who is corruption good for?
It is this question that comes to mind when one observes the process of getting anti-corruption draft laws on «a Strategy Plan for fighting corruption in Ukraine» which were submitted as top-priority by the President, The impression arises that the parliamentary majority has no wish to let them take force.
Over the 15 years of independence, corruption has become an ever more system-creating factor of the state. From time to time campaigns fighting corruption have been initiated, these confined to punishing school heads or chief doctors who wasted small amounts of available funds on the needs of their institutions. At the same time, practice regarded throughout the world as corrupt, has not been deemed such in Ukraine. Ukraine has become one of the most corrupt countries in the world. This is confirmed by authoritative international and domestic studies. It is also very clear to each Ukrainian.
During the Orange Revolution and the parliamentary elections the rallying cries about overcoming corruption were among the most popular. Yet when real steps are proposed for overcoming this phenomenon, the brakes are put on.
So what is going on? In September President Yushchenko approved a Strategy Plan for fighting corruption in Ukraine and submitted the appropriate package with six draft laws to parliament.
Three of these concern ratification of international agreements – the Council of Europe Criminal Law Convention on Corruption, the Additional Protocol to this Convention, as well as the UN Convention against Corruption. The others deal with establishing general principles for countering and preventing corruption (№2113), introduce amendments to criminal and administrative legislation (№2112), as well as regulating liability of legal entities for corruption offences (№2114).
Even a cursory glance at these documents give grounds for asserting that the authors of the draft laws 2112, 2113, 2114 have moved on substantially in their understanding of this difficult social phenomenon and are suggesting serious changes in legislation, aimed at creating conditions which will if not prevent, then reduce to a minimum, corrupt activities. Ukraines joining the international agreements will bring the country to a state where international institutions can have a real impact.
And what? Representatives of all parliamentary factions declared their support for the Presidents initiatives, as reported by the media. The Verkhovna Rada actively set to considering the draft laws and the profile parliamentary committees supported ratifying the international anti-corruption conventions.
Then at the beginning of October deputies began discussing the draft laws in substance. On Tuesday 3 October there was a meeting of the Committee on fighting organized crime and corruption. According to the deputies present, the discussion was fairly lively and constructive. Most spoke out in favour of the draft laws. The few emotional outbursts «against» were rather indicative of the lack of knowledge of those who made them than of actual problems in the draft laws.
Yet by the very next day against a background of political confrontation, the enthusiasm on issues involving fighting corruption among the deputies had unexpectedly vanished. (For reference: most of the members, as well as the Chair of the Committee on fighting organized crime and corruption are from the Party of the Regions).
The result was an opposite decision to reject the draft laws and to cancel the decision to support the ratification of international anti-corruption conventions. The Committee was unable to give one legal or social argument in support of this decision. Nor did the deputies come up with arguments regarding conceptual miscalculations in the draft laws, and they confined themselves to referring to the opinion of the Verkhovna Rada central scientific expert department.
The number of comments on the three draft laws in this opinion came to 127. Presumably such a number made a serious impression on the members of the Committee. They even failed to find out what they were about. Had they taken the trouble, they would have discovered that only about a dozen pertained to the actual legal content of the draft. The opinions moreover recommended that the draft laws be passed at the first reading «as a basis».
The lack of consistency of the authors of the opinion is startling. The central scientific expert department (who the profile committee then repeats) considers «that a fair number of the provisions of these draft laws have serious substantive flaws and arouse serious objections». Furthermore «the adoption of the draft laws could create a threat to justice and the principle of the rule of law, infringe the rights, freedoms and legitimate interests of particular individuals and legal entities».
If the draft laws really contain such a threat to democratic values, then why in the opinion are there no comments to this effect, confirming such a serious statement by its authors? The comments given in the opinion are of a purely technical nature, or are in general debatable or wrong. The conceptual provisions (the approach) of the draft anti-corruption laws are virtually not disputed by the authors of the opinion.
At the same time a number of the comments suggest that the opinions authors lack an understanding of the modern anti-corruption ideology proposed in the draft laws and that they have no wish to move away from an outdated and repressive approach to ways of fighting corruption.
For example, the concept of «corruption» offered by the central scientific expert department contains serious fundamental errors.
The definition proposed for corruption is «the granting of advantages to a relevant person in order to persuade him/her to use his/her offices and the opportunities connected therewith unlawfully».
Yet what about such an extended situation where officials use hints to indicate that they want or would not object to unlawfully receiving benefits for carrying out, or not carrying out, actions using their offices and the opportunities connected therewith?
Or when they out and out demand such benefits? Under these circumstances providing unlawful advantages, according to the Criminal Code, constitutes giving a bribe. So why omit these practices from the definition of corruption?
The following is another example. A lot of paper in the opinion is wasted on the efforts of the authors, providing references to international documents, to prove that the object of corruption cannot be non-material benefits. This position in actual fact is in keeping with Soviet criminal law from the middle of the last century. Whereas on the contrary, the Explanatory Report on the Council of Europe Criminal Law Convention on Corruption states that non-material advantages are a form of corruption, and even give specific examples. The same can be found in the Recommendations on implementing the UN Convention
against trans-national organized crime. These documents are freely available on the websites of the relevant international organizations. If Ukraine wishes to move in the direction of world and European legal practice in recognizing anti-corruption standards, then these standards must also be recognized at the domestic level.
The proposal of the Verkhovna Rada central scientific expert department that a special state body be created on fighting corruption also arouses scepticism. Why yet another state body? International conventions do not demand this.
It is also startling that the experts of the department, providing an opinion on draft anti-corruption laws, are sometimes guided by ideas about the scale and forms (manifestations) of corruption in Ukraine which stray far from reality. For example, they ask how one can be engaged in scientific or creative work or medical practice via intermediaries or dummies.. Here you dont have to look far for an answer. Ukrainian society has long been concerned by this issue. It has recently been considered in a number of publications and television programs where well-known scholars, public figures and journalists have often discussed the issue of scientific works and lectures in universities being undertaken by hired stand-ins (one person writes, and the other signs his or her name – so-called scientific and creative slaves).
The anti-corruption package of draft laws is scheduled for consideration at the Verkhovna Rada session on 18 October. Then we shall see whether the deputies can rise above their narrow political interests and will have an answer to the question in the title of this article.