Fighting corruption: fine words and hard-hitting reports
Photo: Ukrainsky Tyzhden
Milan Lyepich writes in Ukrainsky Tyzhden that international organizations’ reports demonstrate that the Ukrainian authorities are substituting real measures against corruption with declarations. He cites various stern threats issued by President Yanukovych and the Head of the National Security and Defence Council, Andriy Klyuev.
Why in that case did Ukraine fall in Transparency International’s last annual rating from 134th to 152nd place?
Last week the Justice Ministry published the Second Addendum to the GRECO (Group of States Against Corruption) Joint First and Second Round Compliance Report, as well as its own report on the level of corruption in Ukraine.
The Justice Ministry reports that people most often encounter corruption in dealings with the police; when cases are examined in court; in the heath and education spheres. It found that 83% of the population consider giving bribes normal. The Ministry says it will be publishing such reports, in which it lists the number of arrests for bribe-taking etc on an annual basis.
The report does not appear to address the issues which prompted the Second Addendum to the GRECO report.
Of 25 recommendations which Ukraine was given in 2006, less than half (12) have been more or less successfully implemented. Since 2009 when GRECO stressed that 17 recommendations remained unimplemented, only four have been fulfilled
From the Second Addendum (any highlighting is added on this website in awareness that such texts are long and in the hope that GRECO would forgive us. The full text can be downloaded here:
1. GRECO recommended establishing a body, distinct from the law enforcement functions, with the responsibility of overseeing the implementation of the national anti-corruption strategies and related action plans as well as proposing new strategies and measures against corruption. Such a body should represent public institutions as well as civil society and be given the necessary level of independence to perform an effective monitoring function.
GRECO reports that the Ukrainian authorities now indicate that the National Committee against Corruption was established by the adoption on 5 October 2011 (No. 964) of the law "On the Principles of Prevention and Combating Corruption" as the main anti-corruption body in Ukraine.
The President of Ukraine is the Head of the National Committee against Corruption and it is also the President that appoints the other members of the Committee. The members of the Committee are heads of law enforcement bodies, ministers and representatives of Parliament, the judicial branch, scientific circles and two civil society organisations.
“The authorities also submit that non-governmental organisations and independent institutions are to be involved in the monitoring function of the National Committee against Corruption. To this end, on 19 January 2012, the Ministry of Justice in cooperation with the public organisation "Ukrainian Special Board of counteraction of corruption and organised crime", organised a roundtable discussion on "ways to implement the National Anti-corruption Strategy 2011-2015". The authorities report that 24 civil society organisations (most with national status) participated and that the discussions were about how to involve the civil society in the implementation of the
Strategy and the Programme.
In 6, GRECO notes that the Ukrainian authorities have established a new National Committee against Corruption as the main anti-corruption body under the leadership of the President of Ukraine and says that it appears to have been given functions and a composition in line with the requirements of the recommendation.
“That said, GRECO has also received information from a member of the National Committee against Corruption, representing civil society, alleging that civil society currently does not have any real influence over the state anti-corruption policy through the Committee. The Ukrainian authorities insist that civil society has been involved in the progress to establish the strategy against corruption; however, they submit that with the recent transfer of the executive functions of the National Committee to the Secretary of the National Council of Security and Defence, the preparatory work of the National Committee against Corruption will change, inter alia, to provide for more substantial input from various public sector authorities as well as from civil society, in the form of a "Civil Society Council", including various non governmental organisations. GRECO does
not take a position concerning the appropriateness of moving the executive functions of the National Committee from the Ministry of Justice to the Secretary of the National Council of Security and Defence; however, it welcomes that further efforts to bring civil society closer to the process of the National Committee are planned. Consequently, some organisational measures are still required before the National Committee against Corruption can operate as intended.
8. GRECO concludes that recommendation i remains partly implemented.”
9. GRECO recommended urgently developing a detailed plan of action for the implementation of the national anti-corruption strategy (Concept Paper of the President). The plan of action should preferably be subject to international expertise and, to the extent possible, take into account potential cooperation with and assistance from the international community.
11. The authorities of Ukraine report that a "National Anti-corruption Strategy for 2011-2015" has been approved by Presidential Decree of 21 October 2011 (No. 1001) and that the modalities for its implementation are provided for in the "State Programme on Prevention and Counteraction Corruption 2011-2015", as approved by the Resolution of the Cabinet of Ministers on 28 November 2011 (No. 1240). These instruments have been submitted to GRECO; however, they are, according to the authorities, currently subject to expert review by the Council of Europe within the framework of the so called "Eastern Partnership Programme" ("Good Governance and
Fight against Corruption").
12. GRECO takes note of the "National Anti-corruption Strategy for 2011-2015", in which it is, inter alia, stated that corruption in Ukraine has reached the level of a systemic phenomenon, with negative effects in all spheres of public life. GRECO notes that such a statement is very much in line with the conclusions of GRECO in its Evaluation report adopted in 2007. Furthermore, GRECO notes that the Strategy is a rather general document. The objectives of the Strategy are described as outlining the reasons for corruption, specifying the main directions of state policy against corruption, increasing the public’s trust in public authorities and introducing a monitoring system for the effectiveness of laws and measures implemented. The Strategy also provides
some directives on areas to be addressed and expected outcomes. Turning to the "State Programme on Prevention and Counteraction Corruption 2011-2015" the objective of which is to provide a plan of action for the implementation of anti-corruption measures in line with the National Anti-corruption Strategy, GRECO notes that this document is fairly detailed. It deals with areas, such as reform of public administration and the civil service at central and local levels, access to public information, political financing, specialisation of law enforcement, improvements to the qualification of judges, prosecutors and law enforcement staff, prevention of corruption within the law enforcement, liability for corruption offences, corruption in the private sector and
international cooperation etc. The document indicates which bodies are responsible for the various measures as well as the deadlines for implementation of the various measures, although the timing may appear over-optimistic in respect of a number of measures. GRECO takes the view that the State Programme, in principle, appears to be adequate in order to implement various parts of the Strategy; however, it notes also with concern the allegations from the civil society that the National Strategy as well as the State Programme have been developed without the proper involvement of civil society.
In spite of the progress reported, GRECO notes that the Action Plan will undergo further adjustments before it is completed.
13. GRECO concludes that recommendation ii has been partly implemented.
14. GRECO recommended to review the system of administrative liability for corruption in order to clearly establish that cases of corruption are to be treated as criminal offences as a main rule, or, at the very least to establish a clear cut distinction between the requirements for applying these two distinct procedures.
16. The authorities of Ukraine stress that the issue of two parallel legislative frameworks for corruption offences is a particularity of the Ukrainian legal system which was discussed, on 7 December 2011, in Parliament during a round table debate by the Committee on Organised Crime and Corruption. The authorities submit that it was noted in that discussion that the current distinction relating to the value of the property/benefit to be applied when considering a corruption offence as either a criminal or an administrative offence was not sufficient and that, currently, the
distinction between these two offences remains unclear.
17. The authorities also state that the issue of liability for corruption offences is part of the National Anti-Corruption Strategy 2011-2015 as well as of the complementary State Programme on Prevention and Counteraction Corruption 2011-2015 and that this issue is also to be dealt with by Ukraine within the context of GRECO’s Third Evaluation Round concerning "incriminations".
18. GRECO takes note of the information provided. The issue raised in the current recommendation will apparently be dealt with in the future as part of the State Programme on Prevention and Counteraction Corruption. However, to date no substantial results have been achieved in respect of the problems relating to two parallel systems dealing with corruption offences as addressed in this recommendation.
19. GRECO concludes that recommendation iii has not been implemented.
20. GRECO recommended to enhance the independence of the Procuracy from political influence and to provide it with a clearer mandate focused on the leading of pre-trial criminal investigations
23. GRECO takes note of the information provided which indicates that there are some new initiatives taken to comply with this recommendation; however, the measures are still at a very preliminary stage and have not produced any tangible result.
GRECO concludes that recommendation v has not been implemented.
Recommendations xi and xii.
28. GRECO recommended: to introduce regulations with respect to confiscation and seizure of proceeds from crime which would make it possible to apply measures with regard to direct as well as indirect (converted) proceeds, the value of the proceeds and in respect of proceeds held by a third party in conformity with the Criminal Law Convention on Corruption (ETS 173) (recommendation xi) and to introduce regulations on the management of seized property, which can be applied in a flexible way in order to sufficiently preserve the value of such property (recommendation xii).
30. The authorities of Ukraine now report that (a relevant) draft Law has been subject to a first reading in Parliament and that a second reading of the draft is planned later in 2012. The law aims at improving and harmonizing the norms and procedures of confiscation of the proceeds of crime. In respect of recommendation xi, it foresees the possibility to confiscate illegally acquired property, including the proceeds, when attached to legally acquired property or when it was transferred to a third party. As far as recommendation xii is concerned, the draft law intends to amend the management of material evidence with a "short shelf life", as well as products, the value of which can deteriorate or the storage of which calls for substantial expenditures. The
authorities also submit that the Cabinet of Ministers has adopted a Resolution (No 17/2012) concerning storage of seized items in administrative proceedings.
31. GRECO takes note of the information provided that new legislation has still not been adopted. It also notes that some of the elements required by the recommendation, such as temporary measures (seizure), do not appear to have been taken into account.
32. GRECO concludes that recommendations xi and xii remain partly implemented.
33. GRECO recommended to adopt a clear set of rules governing the administrative process and decision making as well as clear guidelines with regard to the hierarchy of different legal norms and standards governing public administration.
35. The Authorities now report that the Ministry of Justice is currently re-working the draft Administrative Procedure Code in order to improve it. The authorities also
report that the draft law "On Normative Legal Acts" has been through a first reading in Parliament and that it is being prepared for a second reading some time in 2012.
36. GRECO notes that no tangible results have been achieved since the adoption of the Addendum to the Compliance report and concludes that recommendation xiv remains partly implemented.
37. GRECO recommended that the external independent audit of local authorities be extended to cover all their activities and that such an audit is built on the same principles of independence, transparency and control which apply to the Accounting Chamber.
39. The Authorities report that according to a Decree of the President of 25 January 2012 (No. 31), the Constitutional Assembly was created, dealing with changes of the Constitution, including the powers of the Accounting Chamber. The authorities also refer to administrative changes adopted through a Presidential Decree of 23 April 2011 (No. 499/2011) according to which the State Finance Inspection, a central executive body coordinated by the Cabinet of Ministers and the Ministry of Finance, has been provided with powers to carry out state financial control and audits.
40. GRECO takes note of the information provided. It regrets that no tangible developments have been reported concerning external independent control over local authorities. The reorganization of the former State Control and Revision Office (KRU) into the new State Finance Inspection does not provide for compliance with this recommendation as this body, like the previous (KRU), is an arm of the executive powers with the main focus on state financing. GRECO notes, however, that the newly established Constitutional Assembly is mandated, inter alia, to examine possible changes of the powers of the Accounting Chamber in respect of auditing local authorities.
GRECO therefore maintains its previous conclusion.
41. GRECO concludes that recommendation xviii remains partly implemented.
42. GRECO recommended that public procurement legislation be thoroughly reviewed in order to bring it into compliance with European norms and standards in respect of policy, accountability and transparency.
43. GRECO recalls that it assessed this recommendation as partly implemented in the Compliance report, as a former law on procurement had been abolished and the process of preparing a new legislation had been initiated. In the Addendum to the Compliance report, GRECO welcomed that the law "On the State Procurements" had been adopted by Parliament (1 June 2010). This law is aimed at ensuring a fair competitive environment and effective use of state funds and to prevent corruption. GRECO considered this a step in the right direction, but was concerned that a number
of amendments had been introduced to exclude significant areas from the scope of the
application of the law, inter alia, procurement relating to the Euro 2012 football championship as well as in the energy area. The recommendation was therefore concluded as partly implemented.
44. The authorities of Ukraine now report that the Law "On Public Procurement" has generally been positively evaluated by international expertise, in particular the European Commission and the World Bank, although not all of it has been praised by these institutions (letter dated 16 June 2010). Moreover, on 8 July 2011 some amendments to the Public Procurement Law were adopted, following cooperation with international experts in order to further comply with international/European standards. Also this has been noted in a letter from the World Bank and the European Commission (letter dated 25 July 2011). The authorities also state that the intention is to continue the process of developing public procurement legislation within the framework of a draft Agreement on the Free Trade Area between Ukraine and the EU.
45. GRECO takes note of the information provided and concludes that Ukraine has improved its public procurement legislation with the recent amendments made. However, it would appear from the documents submitted that certain issues are still in need to be aligned with European norms (EU directives), for example, the definition of "procuring entities" in relation to state owned enterprises and enterprises of public interest. GRECO understands that legislative reforms are still on-going in order to further improve the public procurement legislation in Ukraine.
46. GRECO concludes that recommendation xix remains partly implemented.
47. GRECO recommended to introduce a reform process covering an appropriate range of all public officials - and not only civil servants - following the principles foreseen with respect to civil service reforms.
49. The authorities of Ukraine have now added that on 17 November 2011, the draft law "On Civil Service" has been adopted and will enter into force on 1 January 2013. Moreover, on 21 December 2011, the Cabinet of Ministers submitted a draft law "On Service in Self-Government Bodies to Parliament", aiming at reforming the areas, such as recruitment, legal status and social security of officers in local authorities.
50. GRECO notes that the reforms of public administration in Ukraine appear to be largely limited to the drafting of new legislation and regulations and that the process is slow. GRECO notes that reform of public administration forms a considerable part of the State Programme against corruption. In this respect, GRECO wishes to stress that an appropriate legal framework is a fundamental requirement for reforms; however, the reforms need to go beyond that. The implementation of new legislation requires, for example, training of staff. There appear to be no moves in that respect, not even foreseen in the State Programme and the legislative initiatives referred to have not yet resulted in adopted legislation. The previous conclusion is therefore maintained.
51. GRECO concludes that recommendation xx remains partly implemented.
52. GRECO recommended to introduce clear rules/guidelines for all public officials to report suspicions of corruption and to introduce protection of those who report in good faith (whistle-blowers) from adverse consequences.
54. The authorities of Ukraine now state that the law "On the Principles of Preventing and Combating Corruption" entered into force on 1 July 2011. They furthermore state that the implementation of some transitional and final provisions of this law are dealt with in draft amendments to the law, aiming at improving the mechanism of the practical implementation of the said legal provisions, currently pending before Parliament.
55. GRECO takes note of the information provided and welcomes the fact that the law "On the Principles of Preventing and Combating Corruption" introduces a clear duty upon public officials to report suspicions of corruption and stipulates that persons who report are to be protected from any adverse consequences. However, some subsequent provisions for the practical implementation of the law remain to be adopted and no concrete arrangements for the actual protection of whistleblowers have been adopted. GRECO is therefore of the opinion that Ukraine has not fully complied with the requirements of the current recommendation through the adoption of the law "On the Principles of Preventing and Combating Corruption".
56. GRECO concludes that recommendation xxi remains partly implemented.
57. GRECO recommended to establish a new model code of conduct/ethics for public administration to strengthen the education and instruction of public officials on their obligations and related appropriate behaviour with regard to their service, in particular, with respect to reporting suspected corruption, conflicts of interest and properly assisting the public. To enhance the regular rolling training for public officials on anti-corruption measures and ethical conduct in public life as provided for in law, regulations and policy (soft law).
59. The authorities of Ukraine now submit details of the Law "On the Principles of Preventing and Combating Corruption" as well as in the Law "On Public Service", indicating that their provisions to a large degree are comparable with many of the provisions contained in the Council of Europe Recommendation No. R (2000) 10 on codes of conduct for public officials. They also report that in order to implement transitional and final provisions of the Law "On the Principles of Preventing and Combating Corruption" a new draft law on Amendments to the previous law was submitted by the Cabinet of Ministers to Parliament on 17 November 2011. This draft aims at amending some 44 legislative acts, in particular, to establish rules against conflicts of interest into certain laws concerning various agencies such as the Customs, the State Security Service, the Tax Service, the Militia, etc. Moreover, the authorities refer to a round table discussion in Parliament held on 2 November 2011, during which the draft law "On the Rules of Ethical Behaviour’ was discussed. The authorities finally refer to a number of ministerial orders in respect of various personnel within the Ministries of Finance, Internal Affairs, Foreign Affairs and Justice and the Main Administration of Civil Service, which temporarily puts in place codes of ethics awaiting the final adoption of legislation in these areas.
60. GRECO takes note of the new information provided; it welcomes the fact that the area of codes of conduct/ethical codes is considered important in Ukraine and it agrees that the Law "On the Principles of Preventing and Combating Corruption" as well as the Law "On Public Service" do provide for a number of ethical principles. On the one hand, it appears that massive measures are being implemented in order to establish such codes on a broad scale in public administration.
On the other hand, a large number of the initiatives still depend on the adoption of legislation by Parliament. Consequently, the legal reform process appears not to be finalised. In a situation where the normative acts are not completed, it follows that the second part of the recommendation, which is about the implementation of ethical principles through training depends on the establishment of ethical norms and values.
61. GRECO concludes that recommendation xxii remains partly implemented.
62. GRECO recommended to introduce liability of legal persons for corruption offences, including effective, proportionate and dissuasive sanctions, and to consider establishing a registration system for legal persons which would be subject to corporate sanctions.
64. The authorities of Ukraine now report that the introduction of liability of legal persons into theUkrainian legal system is a priority and that it forms part of the National Anti-corruption Strategy 2011-2015; the Ministry of Justice has been tasked to prepare draft legislation to that end during 2012.
65. GRECO takes note of the information provided, which indicates that the issue addressed in this recommendation has also been subject to a number of contradictory measures. Currently, the drafting of new legislation in this area has again been given priority, now in the National Anti-corruption Strategy 2011-2015, but no results have been achieved.
66. GRECO concludes that recommendation xxiv has not been implemented.
67. In addition to the conclusions contained in the Joint First and Second Round Compliance Report on Ukraine and in view of the above, GRECO concludes that recommendations i, ii, xi, xii, xiv, xviii, xix, xx, xxi and xxii have been partly implemented and recommendations iii, v and xxiv have not been implemented.
68. With the adoption of this Second Addendum to the Joint First and Second Round
Compliance Report, GRECO concludes that out of the 25 recommendations issued to
Ukraine, in total only twelve recommendations have been implemented satisfactorily or
dealt with in a satisfactory manner. GRECO notes that a framework for anti-corruption reform now is emerging with the development of the National Committee against Corruption, the National Anti-corruption Strategy 2011-2015 and the connected plan of action, ie the State Programme for Preventing and Combating Corruption 2011-2015. GRECO is of the opinion that the Strategy and the State Programme now decided upon for a number of years to come, still needs to be adjustable instruments depending on needs expressed by the State institutions, by representatives of the civil society in Ukraine as well as by the international community. Furthermore, GRECO wishes to stress that the National Anti-corruption Committee does not appear to provide sufficient representation of civil society in respect of its executive functions, which raises particular concern in respect of the programming of activities as well as the
independence in the monitoring function. The lack of solid civil society representation on the Committee and its execution of tasks is also likely to have a negative impact on the public trust in this institution, which is in direct conflict with one of the objectives of the Strategy against corruption, "increasing the public trust in public authorities".
Consequently, GRECO urges the Ukrainian authorities to deal with this issue as a matter of priority.
69. The total number of recommendations that have been complied with - just under half of the recommendations issued - is not impressive and it is noticeable that several fundamental issues, such as the independence of the judiciary, the existence of judicial and administrative processes in parallel, the independence of the auditing of local authorities, public service reform, the administrative decision making process and the liability of legal persons in respect of corruption offences, to mention some of the areas highlighted by GRECO in the Evaluation report, still need considerable attention. GRECO regrets that the pace of reforms so far has been very slow and that the legislative process has been full of obstacles. To conclude, GRECO urges the Ukrainian
authorities to take determined action with a view to addressing the pending issues and requests the Ukrainian authorities, in accordance with Rule 31 paragraph 9.1 of its Rules of Procedure, to submit additional information on the further implementation of recommendations i-iii, v, xi, xii, xiv, xviii, xix-xxii and xxiv by 31 December 2012.
70. Finally, GRECO invites the Ukrainian authorities to authorise, as soon as possible, the publication of the Second Addendum, to translate it into the national language and to make the translation public.