Ongoing Ukrainian Saga of not fighting corruption
After important anti-corruption legislation was deferred three times, confidence that it would come into force, as scheduled, on 1 January 2011, was scant. This was despite considerable help, funding and support from international bodies for the laws passed in mid 2009, and Ukraine’s low and ever-falling position on Transparency International’s 2010 Global Corruption Barometer and other ratings.
Certain things became clear when President Yanukovych introduced his own anti-corruption draft law in .
On 17 December , after President Yanukovych produced alternative draft legislation, the pro-government majority in the Verkhovna Rada revoked the three anti-corruption laws two weeks before they were due to finally come into force. On 23 December those same deputies passed the President’s version in its first reading. Although the old laws were revoked and the new draft set on track, media reports suggest that there is lack of consensus as to the point of the exercise itself, and whether the new legislation complies with European standards.
Radio Svoboda reported member of the Parliamentary Committee on Fighting Corruption and Organized Crime, Hennady Moskal as saying there is no significant difference between the laws revoked and those proposed. There was interesting disagreement among Party of the Regions deputies regarding the very considerable amount of money received from international organizations against corruption. While the First Deputy Head of the faction, M. Chechetov saw the laws as flawed because “all laws drawn up on foreign grants are absolutely at odds with our reality”, his party colleague, V. Konovalyuk felt that the 38 million dollars of international aid would give grounds at European Parliament level for saying that the new regime was not fighting with corruption.
There may be other grounds…
The Minister of Justice, Oleksandr Lavrynovych assured the press on 24 December that the new legislation could be passed in its second reading in March 2011. According to Yury Butusov, writing in the authoritative weekly Dzerkalo tyzhnya, the Minister stated that the new legislation takes into account current international documents on fighting corruption, and received a positive assessment from GRECO [ the Group of States against Corruption). On the other hand, Oleksandr Ryabeka, member of the Parliamentary Committee on Fighting Corruption, told Dzerkalo tyzhnya that the President’s version does not have the provisions of the Law revoked on 17 December “On liability of legal entities for corruption offences”. This, he stresses, is a requirement of UN and Council of Europe anti-corruption agreements, and is one of the mandatory recommendations from GRECO. There is no clearly set out procedure for confiscating property obtained by civil servants through corrupt acts.
Mr Ryabeka says that the Committee is supporting the President’s draft law, although it needs serious revising. “This draft law will not resolve all problems in fighting corruption, since experts estimate that it will only bring Ukrainian legislation about 30% into line with international standards. That is, the law in itself is useful, but it simply doesn’t touch on many fundamental issues like checks of relatives of public officials. The President’s draft law No. 7487 is 95% the same as two draft laws from the anti-corruption package. The question arises why it was revised throughout the entire year. The corrections are essentially insignificant. It would have been logically to add the President’s amendments to the existing laws. I fear that the situation demonstrates to our international partners a lack of real political will from the State in fighting corruption.”
At present in Ukraine only an individual can be held liable for corruption, not a legal entity. So an entire commercial outfit which profited from corrupt dealings does not bear any liability.
Butusov notes a “telling detail: although on 20 October at a meeting of the National Anti-Corruption Committee a draft law “On confiscation of income obtained by criminal means” was agreed, it’s provisions have not for some reason been put in draft law No. 7487”.
Yanukovych’s draft law fails to fulfil another GRECO requirement, this being criminal liability for corruption. Unlike in most European countries, where prison sentences will be passed for corruption causing serious damage, according to Draft Law No. 7487 for receiving or offering a bribe up to 100 times the average wage, the court has discretion as to whether to impose criminal or administrative liability. Butusov points out that the courts are notoriously lenient to officials, and that since the maximum amount of such a bribe could be 45 thousand UAH, while the administrative fine 1700 UAH, corruption would be entirely lucrative. The compensation to the state would be 27 times less than the amount stolen!
The most important point is the removal of the norm on mandatory declaration of income of all family and relatives of public officials. According to another member of the Committee, Ruslan Knyazevych, the lack of this norm renders the law virtually impotent.
In October 2010 the Constitutional Court took responsibility for this removal, finding such declarations to be unconstitutional. Ruslan Knyazevych points out that however this may be interpreted in Ukraine, there can be no understanding abroad.
Incidentally, in an interview to the BBC Ukrainian Service, the Minister of Justice defended the judgment from the Constitutional Court. According to the Minister, not only does the close relative have a right to his privacy, but if he grows cabbages and his relative is a chief specialist in the Ministry of Finance, why should he have to itemize the types of cabbage, numbers etc?
Ruslan Knyazevych also points out that the draft law has repeated a number of absurd articles which have been criticized over the last year and a half. Those subject to special anti-corruption checks include all civil organizations, as well as all members of precinct and territorial electoral commissions, i.e. people who have no relation to the public service. “I am afraid that after our enforcement bodies begin checking electoral commissions, only members of one party will continue working there.”
The author expresses hope that the President will understand that he must not be seen to be defending the rights of corrupt officials who, as everybody knows, officially register corrupt gains as belonging to relatives. For this, following the Constitutional Court’s judgment, a law suggesting amendments to the Constitution is needed.
Perhaps a little more realistically he adds that if the President’s advisers fail to tell him of how fundamental this point is to the European Court, he hopes that the parliamentary opposition can gather 150 signatures to an initiative for adding the amendments to the Constitution.
“The adoption of anti-corruption legislation is the basis for the President’s foreign policy initiatives regarding integration with the EU. The EU will not agree to provide a visa-free regime to a State which over six years has not just not managed to overcome corruption, but to at least bring its legislation into line with European recommendations. The European Union does not want to open its borders to a country which will export corruption and organized crime.”
Of 25 GRECO recommendations, only five have been fully implemented. It is not difficult to predict the unfavourable comments in the next GRECO monitoring report scheduled for April 2011.