Law of Ukraine
"On the Principles of State Anti-Corruption Policy in Ukraine (the Anti-Corruption Strategy) for 2014 – 2017"
Date of entry into force:
October 26, 2014
The Law approves the principles of the state anti-corruption policy in Ukraine (the anti-corruption strategy) for 2014 – 2017 (hereinafter referred to as "Anti-Corruption Strategy").
The General Provisions of the Anti-Corruption Strategy state that solving the corruption problem is one of the priorities for the Ukrainian society at the current stage of the development of the state. Research data shows that corruption was one of the reasons that led to mass protests in Ukraine at the end of 2013 – beginning of 2014. According to the Global Corruption Barometer research conducted by Transparency International in 2013, 36% of Ukrainians were ready to take to the streets to protest corruption. According to the public opinion survey conducted by the International Foundation for Election Systems in late 2013, corruption was included in the list of the largest problems of the population and caused high levels of concern in 47% of citizens. According to the Corruption Perceptions Index research conducted by Transparency International, Ukrainians believe their country to be one of the most corrupt in the world: in 2012 and 2013 Ukraine ranked 144 out of 176 countries in the research. Such high level of corruption perception by the citizens is explained by the lack of effective reforms in the corruption counteraction sphere and by ineffective work of law enforcement bodies related to discovering corruption-related offences and bringing the offenders to liability; this is demonstrated, in particular, by Ukraine's unsatisfactory fulfillment of its international obligations to implement anti-corruption standards: of the 25 recommendations of the Council of Europe Group of States against Corruption (GRECO) provided based on the results of the first and second assessment rounds, only 13 recommendations were implemented, despite 6 years of work and three rounds of progress assessment; while out of 16 recommendations provided based on the results of the third round, only three have been implemented. Of the anti-corruption recommendations in the Action Plan for the European Union (EU) Liberalization of the Visa Regime for Ukraine, only a small part has been implemented, related to criminalization of corruption. The key recommendations of the Council of Europe Group of States against Corruption (GRECO) relating to creation of anti-corruption institutions, reforming the prosecutor's office and civil service, creation of control systems to prevent conflicts of interest and ensure asset integrity of officials remain unimplemented. Furthermore, the National Anti-Corruption Strategy for 2011 – 2015, adopted by Order of the President of Ukraine N 1001 of October 21, 2011, failed to become an effective instrument of anti-corruption policy. One of the main reasons for the failure to implement the National Anti-Corruption Strategy for 2011 – 2015 as the main program document in the anti-corruption field was the lack of clear status indicators and implementation efficiency indicators, in spite of international experience. The above Strategy also lacked a mechanism for monitoring and assessment of its implementation – it failed to provide how appropriate work was supposed to be carried out by the National Anti-Corruption Committee, and how the community was supposed to be involved in such processes. Therefore, it can be stated that as of today, Ukraine de facto lacks an effective corruption counteraction strategy that would take into account the acuteness of the problem and the pressing nature of the situation. Due to the above, a new strategic document must be approved, which would determine the top-priority measures to prevent and counteract corruption that must create a basis for further reforms in this sphere.
According to Section 2 of the Anti-Corruption Strategy, Ukraine de facto lacks a clear legislative and institutional basis to form and implement anti-corruption policy based on cooperation between state authorities and the community. Its purpose is to create a system for decision-making related to anti-corruption policy in Ukraine, based on the results of analysis of reliable data about corruption and officials that cause it, in particular, statistical observation and monitoring the implementation of these decisions, and of their impact on the status of corruption prevention issues, conducted by an independent specialized body with involvement of civil community representatives, as well as forming community support for combating corruption. The following measures are envisaged:
- on the legislative level, determine the principles for organization and operation of the specially authorized body for corruption prevention, responsible, in particular, for a complex of measures aimed at creation and implementation of the anti-corruption policy. The above body must have guarantees of independent operation, with ensured broad participation of civil community representatives, and charged, among others, with the following functions: 1) preparing an annual report on the status of the Anti-Corruption Strategy Implementation and a draft of the report on implementation of the anti-corruption policy principles; 2) analyzing the status of corruption-related issues, preparing proposals for measures of normative legal, organizational and staff-related nature; 3) monitoring and coordinating implementation of the anti-corruption program; 4) controlling adherence to the legislation on conflict of interests, and declaring of property, incomes, expenses, and financial liabilities; 5) involving the community in creation, implementation and monitoring of the anti-corruption policy; 6) spreading information on corruption, implementing measures to create a worldview of intolerance to corruption;
- draft an act of the Cabinet of Ministers of Ukraine to adopt the national methods of corruption level assessment according to the UN standards, hold annual research, with community involvement, related to corruption perception, public trust in the bodies responsible for corruption prevention, readiness of the public to take part in corruption prevention measures, incidence and types of corruption behavior models, and corruptogenic risks in appropriate spheres;
- hold annual hearings in the Verkhovna Rada of Ukraine related to the national report about the status of corruption prevention issues, prepared by the specially authorized body in the issues of anti-corruption policy, and promulgate the report together with the conclusions and recommendations of the parliamentary hearings;
- ensure implementation of international standards of cooperation between the government and the community for decision-making in the sphere of anti-corruption policy, in particular, those established in the Code of Good Practice for Civil Participation in the Decision-Making Process adopted by the Conference of International Non-Governmental Organizations at its meeting on October 1, 2009, and move on to new cooperation forms, such as dialogue and partnership;
- conduct regular information campaigns oriented at different social groups, aimed to eliminate corruption tolerance and increase the degree of cooperation between government and citizens in corruption counteraction.
Section 3 of the Anti-Corruption Strategy determines the problems, objective, and measures for corruption prevention:
- corruption prevention in representative government bodies;
- creating a trustworthy public service;
- corruption prevention in the operation of executive authorities;
- corruption prevention in the sphere of government procurement;
- corruption prevention in the judicial system and bodies of criminal justice;
- corruption prevention in the private sector;
- access to information.
The objective, envisaged by Article 4 of the Anti-Corruption Strategy, is creating a system of instruments that will enable efficient discovery and investigation of corruption-related offences, confiscation of property that was the subject of criminal activity or acquired through such activity, and bringing persons involved in corruption-related offences to liability. The following measures are suggested to this effect:
- adopt laws aimed at: 1) amending the Criminal Code of Ukraine to: a) define and list corruption-related offences; b) make it impossible for persons who committed corruption-related offences to be relieved of liability and punishment, in particular, through admission by bail, due to active remorse, probation, etc.; c) bringing Article 368-2 in correspondence with Article 20 of the United Nations Convention against Corruption, and implementing civil law mechanisms for seizing unlawfully acquired property; 2) regulating issues of managing corporate interest and other arrested property in order to preserve its value, and creating a specialized unit (body) authorized to search for property that may be confiscated; 3) creating possibilities for pre-trial inquiry and court proceedings, and for seizing into state revenue (confiscating) property acquired through criminal activity, if the suspect (defendant) is evading investigation or trial; creating guarantees for effective management of such assets, in particular, using community control mechanisms (for example, by creating a specialized fund); 4) creating the specially authorized body in the issues of discovering and investigating corruption-related offences, on the following principles: a) sufficient guarantees of independence (open and transparent competitive selection of the head; clear grounds for dismissal of the head, as determined by law, excluding the possibility of dismissal for political reasons; principles for financing the body, as determined by law, and the amount of remuneration for its employees; prohibition to interfere with its operation); b) transparent competitive selection of the main staff of the body, in order to reduce the risk of illicit influence on decision-making, and selection of qualified staff that meet the integrity criteria; c) specialization of the body on corruption-related offences committed by high-ranking officials, judges, prosecutors, and other persons provided that the corruption-related offence has a high degree of social hazard; d) incentive mechanisms, including material incentives (for example, a certain percentage of the confiscated criminal incomes), aimed at discovering facts of corruption; e) community control and openness of the body, bi-annual reporting on operation; f) incentives for cooperation with authorized state bodies in order to discover facts of corruption; g) introducing positions of specialized anti-corruption prosecutors, assigned to the specially authorized body in the issues of discovering and investigating corruption-related offences;
- create a working group that will include representatives of the Cabinet of Ministers of Ukraine, bodies of criminal justice, business, and civil community, and will monitor the implementation of the legislation on criminal legal proceedings to legal entities; prepare the necessary methodic materials for employees of bodies of criminal justice, and for judges; organize trainings for specialists that will apply the law; organize a broad information campaign for explaining provisions of the law and the necessity to ensure business integrity, with civil community and business involvement; based on the results of the law application monitoring, prepare amendments for the law;
- create a unified state register of legal entities involved in corruption, in order to exclude the possibility of their participation in fulfilling government orders and contracts, receiving government loans, tax preferences, subsidies and subventions; ensure free access to such register through the Internet;
- expand the concept of "public official" in the legislation on preventing and counteracting legalization (laundering) criminal incomes to include national public officials and officials of international organizations.
One of the most substantial factors in overcoming corruption is the public attitude to that problem. Results of studies conducted in Ukraine in recent years, over a half of the population are inclined to commit corruption-related offences if that may facilitate solution of a problem. Furthermore, a large portion of the population, due to lack of appropriate knowledge, does not classify certain types of behavior as corruption-related, while nevertheless acknowledging that such behavior does not meet the norms of morals or professional ethics. Through efficient awareness-building work, the population may change their attitude towards such practices as unacceptable and corruption-related, and therefore, the anti-corruption potential of the society will increase significantly. Attention must be given to measures related to ensuring more active participation of the public in reporting facts of corruption that became known to them to bodies authorized to counteract corruption. The portion of such population is low, in particular, due to the high level of public loyalty to corruption, condemnation of reporting corruption as behavior that conflicts with ethical norms, low levels of trust in the work of law enforcement bodies, lack of faith in the effectiveness of anti-corruption measures, and the fear of punishment for reporting corruption suspicions. At the same time, the anti-corruption potential of measures to involve the public in discovering and reporting facts of corruption is high, as shown by experience of foreign states. Creating special conditions that will facilitate a change of social views on reporting facts of corruption is one of the priorities of the state anti-corruption policy (Section 5 of the Anti-Corruption Strategy). Due to this, an action plan shall be adopted, in cooperation with civil community institutes, oriented at different social and age groups, and aimed at comprehensive solution for the problem of public tolerance of corruption, providing, in particular, for:
- conducting regular information campaigns aimed at creating a public mindset for the unacceptability of corruption as a method of problem solving;
- increasing the level of legal awareness of the population, in particular, in the part of citizen awareness of their rights and freedoms, the mechanisms for their exercise, and means of legal protection;
- explaining the most important anti-corruption measures carried out in the state, provisions of the legislation on corruption prevention and counteraction, in particular, in the part of defining types and forms of corruption behavior;
- systemic implementation of educational measures on behavior models in various situations with possible corruption risks;
- implementing a culture of reporting facts of corruption-related offences to specially authorized entities in the sphere of corruption counteraction;
- overcoming the public passivity in respect of corruption counteraction, involving broad circles of the population to take active part in anti-corruption activity.
Section 6 of the Anti-Corruption Strategy states that successful implementation of the Anti-Corruption Strategy shall enable decreasing the level of corruption in Ukraine, increasing the level of public trust in the government, increasing the level of foreign investment in the national economic, and creating a basis for further anti-corruption reform. To implement the Anti-Corruption Strategy, it is envisaged to draft and approve a number of laws, in particular, on:
- the principles of organization and operation of the specially authorized body responsible for implementing a complex of measures to create and implement the anti-corruption policy;
- creating the specially authorized body in the issues of discovering and investigating corruption-related offences;
- implementing the recommendations of the Council of Europe Group of States against Corruption (GRECO) in the part of increasing the transparency of political party and election campaign financing;
- creating legal foundations of lobbying;
- increasing community control over decision-making by elected officials, in particular, through the mechanism of preliminary community discussion of socially important decisions;
- amending the Law of Ukraine "On Civil Service" adopted in 2011, with regard to suggestions of the SIGMA program;
- conducting inspections of the integrity of public officials;
- amending laws and subordinate normative legal acts in the part of implementing the standards of the OECD (Organization for Economic Cooperation and Development) Guidelines on Corporate Governance of State-Owned Enterprises of April 22, 2004, in the work of state-owned companies in Ukraine;
- amending the Constitution and Laws of Ukraine aimed at reforming the judicial system and the status of judges based on European standards;
- amending the Constitution and Laws of Ukraine aimed at reforming the prosecutor's office based on European standards;
- amending the Criminal Code of Ukraine in the part of making it impossible for persons who committed corruption-related offences to be relieved of liability and punishment, in particular, through admission by bail, due to active remorse, probation, etc.; to bring Article 368-2 in correspondence with Article 20 of the United Nations Convention against Corruption; and to implement civil law mechanisms for seizing unlawfully acquired property;
- regulating issues of managing corporate interest and other arrested property in order to preserve its value, and creating a specialized unit (body) authorized to search for property that may be confiscated.
The effectiveness of the Anti-Corruption Strategy shall be assessed on the basis of:
- results of annual research of the corruption status in Ukraine conducted through broad statistical observations and analysis of practical application of anti-corruption legislation;
- determining the degree of implementation of international standards in the sphere of anti-corruption policy.
Based on the results of corruption status research, indicators of successful implementation of the Anti-Corruption Strategy can be:
- an increase in the portion of the public that has a negative attitude to corrupt practices;
- a decrease in the portion of the public with own experience of corruption behavior;
- an increase in the number of citizens ready to report facts of corrupt practices, and citizens who reported facts of corruption in their respect to competent authorities.
The degree of implementation of international standards shall be determined based on the following indicators:
- implementation of the recommendations provided for Ukraine by the Council of Europe Group of States against Corruption (GRECO); recommendations provided in the framework of monitoring the Istanbul Anti-Corruption Action Plan of the OECD (Organization for Economic Cooperation and Development) Anti-Corruption Network for Eastern Europe and Central Asia; implementation of the Action Plan for the European Union (EU) Liberalization of the Visa Regime for Ukraine in the part of corruption prevention and counteraction; and of the action plan in the Open Government Partnership Initiative;
- improving the Corruption Perceptions Index published by the international non-governmental organization Transparency International;
- achieving a high level of correspondence of standards of international initiatives (the Extracting Industries Transparency Initiative, the Construction Sector Transparency Initiative, the Open Budget Index, etc.).