Over the past few years, the Verkhovna Rada of Ukraine has adopted four laws in the area of combating corruption, each subsequent one repealing the previous one.
Anti-corruption laws: “don’t say it’s worse, abi inshe”
The first of these, "On the Fight against Corruption," dated October 5, 1995, consisted of only 17 articles. It contained clear and understandable definitions of the terms "corruption" and "corrupt acts," as well as who exactly should be considered perpetrators of corruption and other corruption-related offenses, what special restrictions apply to such perpetrators, and what liability they should bear for failure to comply with these restrictions, as well as for committing the corresponding offenses, and so on, writes Rakurs.
The said Law referred to the following only as subjects of corrupt acts and other offenses related to corruption: a) civil servants; b) the Prime Minister of Ukraine, the First Vice Prime Minister, Vice Prime Ministers, and ministers; c) people's deputies of Ukraine, deputies of the Verkhovna Rada of the Autonomous Republic of Crimea, deputies of village, settlement, city, city district, district, and regional councils; d) local government officials; and d) military officials of the Armed Forces of Ukraine and other military formations (except for conscripts).
On June 11, 2009, parliament adopted the Law of Ukraine "On the Principles of Preventing and Combating Corruption" to harmonize Ukrainian legislation with relevant international standards. This Law entered into force on the day of its publication (July 18, 2009), and its implementation was planned for January 1, 2010.
However, the deadline for the implementation of this Law was postponed twice by the legislator: first to April 1, 2010, and then to January 1, 2011. The reason for this "postponement" was the impossibility of practical implementation of both its individual provisions and the provisions of the laws "On the Liability of Legal Entities for Committing Corruption Offenses" and "On Amendments to Certain Legislative Acts of Ukraine Regarding Liability for Corruption Offenses," which were adopted simultaneously with the basic Law in this area. Subsequently, on the basis of the Law "On Repealing Certain Laws of Ukraine Regarding the Prevention and Combating of Corruption" dated December 21, 2010, No. 2808-VI, all of the aforementioned legislative acts were declared invalid. However, given that Law No. 2808-VI was officially published only on January 5, 2011, the aforementioned laws actually came into force on January 1. In this regard, the “automatic” loss of force by them (including those provisions that introduced amendments to other legislative acts), as well as the “return to force” of the Law of Ukraine “On the Fight against Corruption” of October 5, 1995, was nothing more than a violation of the established rules of legislative technique.
The next step in improving legislation in the fight against corruption was the adoption by Parliament on April 7, 2011, of the new Law of Ukraine “On the Principles of Preventing and Combating Corruption,” which entered into force on July 1, 2011 (with the exception of certain provisions) and is in force today.
Moreover, during the three years this Law has been in effect, numerous amendments have been made to it based on 13 legislative acts. Furthermore, by a decision of the Constitutional Court of Ukraine, the provisions of paragraph 2 of part 1 of Article 7 of the Law prohibiting persons specified in paragraph 1 of part 1 of Article 4 (the President of Ukraine, the Chairman of the Verkhovna Rada, etc.) from participating in the general meeting of an enterprise or organization aimed at making a profit were deemed unconstitutional.
Another attempt to curb corruption
The culmination of this "legislative activity" was the adoption by the Verkhovna Rada on October 14, 2014, of a new Law, which was entitled "On the Prevention of Corruption" and was scheduled to enter into force on April 26, 2015. Let us briefly review the main innovations of this Law.
The law provides for the creation of a new central executive body with a special status, which ensures the formation and implementation of state anti-corruption policy - the National Agency for the Prevention of Corruption (hereinafter referred to as the National Agency).
The said Agency will be created by the Cabinet of Ministers in accordance with the Constitution, this and other laws of Ukraine and will consist of members appointed to the position by the government for a term of four years based on the results of a competition.
Powers of the National Agency: conducting an analysis of the state of prevention and combating corruption in Ukraine, the activities of state bodies, authorities of the Autonomous Republic of Crimea and local governments in the area of preventing and combating corruption; developing drafts of the Anti-Corruption Strategy and the state program for its implementation, monitoring, coordinating and evaluating the effectiveness of the implementation of the Anti-Corruption Strategy; organizing research to study the situation with regard to corruption; implementing, in the manner determined by this Law, control and verification of declarations of persons authorized to perform functions of the state or local government, storing and publishing such declarations, monitoring the lifestyle of persons authorized to perform functions of the state or local government, etc.
Certain provisions of the Law on the activities of the National Agency are somewhat questionable and legally incorrect.
Law or Code of Criminal Procedure?
Having identified signs of a corruption offense, the National Agency sends a corresponding report to the authorized anti-corruption bodies. This report is subject to mandatory review, and the Agency is notified of the results no later than five days after receiving notification of the offense.
However, this effectively violates the provisions of Part 1 of Article 214 of the Criminal Procedure Code of Ukraine, according to which the investigator or prosecutor is obligated to immediately, but no later than 24 hours after the filing of a complaint or report of a criminal offense, or after independently identifying from any source circumstances that may indicate the commission of a criminal offense, enter the relevant information into the Unified Register of Pre-Trial Investigations and initiate an investigation.
Moreover, in this case, it is unclear what kind of "conclusion" could be in question if the National Agency identifies signs of a corrupt administrative offense. After all, Part 2 of Article 13 of the Law stipulates that in such cases, authorized representatives of the National Agency must draw up reports on the relevant administrative offenses and subsequently submit them to court (see also the amendments to Articles 221 and 255 of the Code of Ukraine on Administrative Offenses).
Mysterious "counteracting entities"
The law does not provide for an effective legal mechanism for interaction between the National Agency and the aforementioned "specially authorized entities in the field of combating corruption," a list of which is also absent from the law. One can only guess that in this case, this refers to pre-trial investigation bodies, units authorized to conduct operational investigative measures, and bodies (officials) authorized to hear cases of administrative offenses.
In general, given the large number of corruption offenses (including crimes) committed, it's easy to assume that the actual fight against them will continue to be carried out by "specially authorized entities in the field of combating corruption." The National Agency, in turn, will only "conduct an analysis of the prevention and combating of corruption in Ukraine," "organize research to examine the situation regarding corruption," "coordinate, within its competence, methodological support and analyze the effectiveness of authorized units (authorized persons) in matters of preventing and detecting corruption," and so on.
In this case, the question logically arises about the advisability of creating and maintaining a new government agency, especially with the possibility of creating an unlimited number of its territorial bodies, whose territory of operation may not coincide with the administrative-territorial division (Part 3 of Article 8 of the Law).
Monetary allowance
The level of state-funded remuneration for members and employees of the National Agency's apparatus stipulated by law significantly exceeds even the equivalent compensation for judges. The official salary of a local court judge in 2014 is 10 minimum wages (UAH 12,180). The official salary of a member of the National Agency will be 19,5 minimum wages (UAH 23,571). This does not include seniority bonuses, rank bonuses, bonuses, and other allowances stipulated by the Law of Ukraine "On Civil Service," referred to in Part 3 of Article 16 of the Law in question.
The salary of the head of the National Agency will be even higher and will be set proportionally to the salary of a member of the National Agency, with a coefficient of 1,3. However, the calculation formula for this coefficient is not provided for by the Law.
The salaries of the Chairman and members of the National Agency appear unreasonable, especially given the current economic situation in the country.
Equally controversial is the "equalization" of the salaries of employees of the National Agency's apparatus to those of corresponding positions in the Secretariat of the Cabinet of Ministers of Ukraine. This would grant them a "privileged position" relative to civil servants of other central executive bodies, where salaries are much lower.
Relatives close and not so close, or Mother-in-law and mother-in-law as an inner circle
The new Law of Ukraine "On the Prevention of Corruption" significantly expands the list of persons considered close relatives for the purposes of this Law. Thus, in addition to husband, wife, father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, brother, sister, grandfather, grandmother, grandson, granddaughter, great-grandfather, great-grandmother, great-grandson, great-granddaughter, adoptive parent, adoptee, guardian, or trustee, as well as a person under the guardianship or trusteeship of the relevant entity, close relatives are also recognized as: son-in-law, daughter-in-law, father-in-law, mother-in-law, father-in-law, and mother-in-law.
However, even if we take such degrees of kinship as great-grandfather, great-grandmother, and, accordingly, great-grandson and great-granddaughter, and also include in the specified list a stepson and stepdaughter, then a conflict of interest can be identified in almost every person authorized to perform state functions, etc. This is especially true for small settlements, where the majority of residents are to some extent related to each other by relevant family ties.
As for sons-in-law, daughters-in-law, fathers-in-law, mothers-in-law, fathers-in-law, and mothers-in-law, in this case it is probably impossible to speak of the corresponding “closeness” at all, since between the subject of responsibility for corruption offenses and the aforementioned persons not only is there no family connection, but quite often there is no “family” relationship at all.
Furthermore, classifying these individuals as "relatives" automatically extends the provisions of the Law, according to which these individuals and their property are protected by the state. Specifically, upon receipt of a corresponding application from a member of the National Agency, internal affairs agencies will take the necessary measures to provide for their relatives and preserve their property. Furthermore, damage caused to the property of close relatives of a member or employee of the National Agency in connection with the performance of official duties is fully compensated from the state budget, with subsequent recovery of this amount from the guilty parties in accordance with the procedure established by the Law.
"Valuable" property
No less contradictory are certain provisions of the Law on information that must be indicated in the declaration of persons authorized to perform functions of the state or local government, as well as the procedure for its publication.
Firstly, the inclusion in Article 46 of the Law of a detailed list of all components of the declaration of persons authorized to perform state or local government functions for the previous year is unjustified, especially since Part 1 of Article 45 indicates that the form of such a declaration is determined by the National Agency.
Secondly, in accordance with the requirements of paragraph 3 of Article 46 of the Law, such a declaration must include information on valuable movable property, the value of which exceeds 50 minimum wages established as of January 1 of the reporting year, which is privately owned by the declarant or members of their family, including jointly owned, or is in their possession or use, regardless of the form of the agreement through which such right was acquired. However, neither the Law "On the Prevention of Corruption" itself nor current legislation provides a clear definition or even criteria for classifying any movable property as "valuable."
Furthermore, the minimum wage in 2014 is UAH 1218,00. Given the significant inflation currently underway and rapidly rising prices, a gas boiler, or even a bedroom set for which the declarant's family saved throughout the year, could cost 50 minimum wages (or UAH 60,900.00). Given this, we believe that in such a case, it would be necessary to either abandon the "link" to the minimum wage for the relevant year, which typically lags significantly behind the actual economic situation in the country, or increase it, for example, to 100 minimum wages.
Given the above, the provisions of Part 2 of Article 52 of the Law appear somewhat illogical. According to this provision, a declarant's income exceeding 50 minimum wages, or the acquisition of property worth such an amount, is considered a material change in their financial situation, which entails the obligation of such a declarant to notify the National Agency in writing within ten days of receiving the income or acquiring the property. This information is entered into the Unified State Register of Declarations of Persons Authorized to Perform State or Local Government Functions and is published on the official website of the National Agency.
Informant privileges: anonymity and the "witness protection program"
Section VIII of the Law (which contains only Article 53) introduces the so-called institution of whistleblowers, i.e., individuals who assist in preventing and combating corruption. Specifically, this "status" is granted to an individual who, with reasonable assurance that the information is reliable, reports a violation of the requirements of this Law by another person (Part 1 of Article 53 of the Law). Furthermore, a report of a violation of the requirements of this Law may be made by an employee of the relevant government agency without attribution (i.e., anonymously).
To this end, the National Agency, as well as other state bodies, authorities of the Autonomous Republic of Crimea, and local government bodies must ensure conditions for their employees to report violations of the requirements of this Law by another person, in particular through special telephone lines, official websites, and electronic communications.
Moreover, these whistleblowers are protected by the state. In particular, if there is a threat to the life, home, health, or property of individuals assisting in the prevention and counteraction of corruption, or their close relatives, in connection with a report of a violation of the requirements of this Law made by law enforcement agencies, they may be subject to measures aimed at protecting them from unlawful attacks, as stipulated by the Law of Ukraine "On Ensuring the Security of Persons Participating in Criminal Proceedings."
Such excessive evaluativeness of the requirements for information that will be provided by whistleblowers regarding individual subjects responsible for corruption offenses, in systemic connection with the right of the National Agency to monitor the lifestyle of such subjects (Article 51 of the Law), may turn into a means of “settling scores” with political opponents or lead to the unjustified dismissal of a number of qualified employees of the relevant state bodies and local government bodies.
In general, in our opinion, the best anti-corruption law will be effective and efficient only if anti-corruption fighters have a high level of legal awareness. If members and employees of the National Agency, the National Anti-Corruption Bureau of Ukraine, and other anti-corruption actors are guided solely by their own "interests," they will become nothing more than another link in the existing corruption system of our country.
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