Shadow Report: Public Assessment of Anti-Corruption and European Integration

Recently, the coalition of civil society organizations, including Transparency International Ukraine, presented a Shadow Report on the state of affairs in Ukraine in 2024 for the European Commission. Our organization compiled a section of the report on the fight against corruption. Yesterday, the last and final version of the report was presented to our European partners.

What is behind this title? After all, this is the first time such a document has been developed in the framework of European integration, and many do not quite understand its weight in future negotiations. What achievements and future changes do we at TI Ukraine consider to be the next step?

What is a Shadow Report?

Joining the European Union is a complex process, a multi-layered one. Therefore, the European Commission cooperates a lot with representatives of public authorities and receives much information from them about the progress of reforms and changes in Ukraine, its achievements, including in the fight against corruption.

However, our European partners realize that focusing only on the data provided by the authorities will not do; it is important to know the stances of various stakeholders. The Shadow Report is actually one of the documents created by experts and civil society at the request of European partners. Moreover, this format can be called traditional in the course of candidate countries’ integration into the EU. The report is called “shadow” because it is not a document developed and published by the authorities.

Since Ukraine is just starting negotiations with the EU, the partners turned to Ukrainian CSOs for the first time with a request for such a comprehensive alternative analysis. This document covers the main issues from Chapter 23 Justice and Fundamental Rights of the European Commission’s Report on Ukraine in 2023. In the process of negotiations on accession to the EU, it will be “opened,” that is, it will be considered first, and it will remain “open” throughout the process of our accession to the EU. It will be closed last at the final stage of negotiations—after the approval by all EU member states.

That is, the accession of Ukraine to the EU is impossible until it fulfills all the points of this section, and this work must be carried out by our authorities throughout the period of integration into Europe. 

Last year, the European Commission already presented the key findings of the 2023 EU Enlargement Report on Ukraine as a candidate country, where it also described our effectiveness in the fight against corruption. Now, in the Shadow Report, civil society experts assess the degree of implementation of the recommendations provided by the European Commission and analyze legislative and political initiatives, as well as compare how these provisions are consistent with the legal framework of the European Union and the expectations of civil society and stakeholders. The report analyzed the progress Ukraine achieved in each of the listed areas, starting from June 2023 to July 2024, and the data for August 2024 are presented in a separate annex to it. 

The broad topic of justice and fundamental rights cannot be analyzed by one organization. That is why this first report was compiled by the coalition of civil society organizations.

Considering many years of expertise, knowledge, and experience, non-governmental organizations divided the work on the report into separate areas. The Agency for Legislative Initiatives covered the section on judicial reform, the Tomorrow’s Lawyer program analyzed the reform of the prosecutor’s office and the bar, the Ukrainian Bar Association dealt with the problems of legal education reform, and the Human Rights Centre ZMINA described challenges in the protection of fundamental rights and freedoms.

We at Transparency International Ukraine predictably delved into the problems of anti-corruption.

Describing the issues of countering corruption, we focused not only on our own experience. Our experts conducted an extensive survey of the opinions of other civil society representatives. This, in our opinion, has helped us come up with comprehensive recommendations and assess the current situation.

We already know that the report has been read by our European partners, who will subsequently shape the position on Ukraine. That is, it has already reached the addressees.

The contents of the anti-corruption section

While working on our section of the report, TI Ukraine focused on similar documents from other candidate countries. Notably, such shadow reports are public and available not only in Ukraine. This means an additional responsibility, so it requires a well-balanced and reasoned approach.

In general, the Anti-Corruption section consists of 8 parts:

• the National Anti-Corruption Strategy and the State Anti-Corruption Program;
• anti-corruption institutions;
• restoration of mandatory submission and verification of e-declarations of officials;
• corruption risks management, conflict of interests, institution of whistleblowers;
• restoration of political party reporting;
• results of an independent external assessment of the NACP’s effectiveness;
• legislative regulation of excessive influence of oligarchs and lobbying;
• investigation of anti-corruption cases by the National Police of Ukraine, the State Bureau of Investigation, and the Security Service of Ukraine.

After analyzing all these areas, we identified 94 problems and, accordingly, provided our 94 recommendations.

I realize that 94 recommendations may prove too many. The recommendations provided by us are comprehensive and applied, covering areas related to prevention and fight against corruption. We have been talking about some problems raised for a long time, but there are also those that arose precisely in the process of negotiations with the European Union.

What do we want the European Commission to pay attention to?

Selection and evaluation of personnel in anti-corruption bodies. Although Ukraine has already achieved a lot in this area, both at the legislative and practical level in competitions for management and other positions in anti-corruption institutions, several issues remain. For example, the current matter of the competition to select judges of the High Anti-Corruption Court.

The most pressing challenge now is the term of office of the Public Council of International Experts (PCIE).According to the law, it is formed for six years, and the term expires in November 2024, given the operation of the PCIE and the selection of HACC judges even before the launch of the court. The candidates admitted to the competition havenot even passed the first stages of testing; so, it is difficult to imagine that the HACC competition will end in November. Questions may arise regarding the authority of the PCIE.

In my opinion, ideally, we should have a fully operational PCIE until we fill all the vacant positions of HACC judges, including those that will appear after the end of the active competition, as some judges from the first instance will move to the appellate court. A draft law has already been registered in the parliament, which, with certain improvements, can solve this problem. However, it has not yet passed the second reading. Less and less time remains for its adoption.

Independence of institutions. Anti-corruption bodies should be able to independently make decisions that directly affect their productivity. For example, the SAPO still does not have full procedural independence. Although parliamentarians have introduced many improvements in the work of this body relatively recently, and the SAPO was finally granted the status of a separate legal entity, this is not enough.

The initiation of criminal prosecution and approval of the main investigative actions against MPs still depends on the politically appointed Prosecutor General. The head of the SAPO must have such powers. This is a significant problem considering the number of cases involving MPs that are being processed by the NABU and the SAPO. It can be assumed that the number of such cases will significantly increase with the restoration of the declaration requirement.

In addition to the not entirely justified special guarantees of MPs and other entities, the SAPO head should be provided the opportunity to apply for extradition to the competent body of a foreign state for greater procedural independence.

Effectiveness of the trial. In this area, the most talked-about topic recently has been the institution of plea agreements. In 2023, the number of criminal proceedings under consideration by the HACC was record-high—288. In 2023, the Anti-Corruption Court passed 45 sentences in the field of official and professional activity related to the provision of public services, of which 18 featured the approval of plea agreements.

Simplification of court proceedings, which can include the conclusion of such agreements, means adhering to international recommendations on the use of means to eliminate delays in the administration of criminal justice.

The existing draft law, aimed at developing the institution of agreements, needs significant revision and further voting in the second reading. Increasing the number of opportunities to conclude plea agreements for corruption and corruption-related criminal offenses must be accompanied by adequate safeguards against their abuse.

Firstly, replacing the actual punishment with a probationary period should be allowed if criminal proceeds of the accused get confiscated, as well as if they expose another person or pay an increased fine. Secondly, it is necessary to provide an opportunity for the court to request the collected materials of the pre-trial investigation or to oblige the prosecutor to send the materials of the pre-trial investigation to the court together with the indictment and the plea agreement. Thirdly, a fairly frequent recommendation in such matters is to summarize the case law of the HACC regarding the verification of agreements for compliance with the requirements of criminal procedural legislation.

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Here, I have listed only several important problematic aspects in the operation of anti-corruption organizations, which are currently troubling Ukrainian society, and, accordingly, should be the focus of the European Commission.

Describing the problems in the fight against corruption in the report, we focused on carrying out the maximum number of necessary reforms and integrating European legislation into Ukrainian realities.

We have the same goal as the authorities do, but we might have different views of whether we have done enough, the priorities of reforms, achievements in various areas, and the ways to such achievements.

We will find out soon whether the European Commission has heeded our warnings.

European integration is a lengthy process, and the public sector will produce perhaps many more similar reports. The content of the sections of the subsequent shadow reports will most likely differ from the first one and may differ from this year’s one. 

This motivates us to actively follow the processes in the country and signal problems to the authorities and partners. Only with the joint efforts of the authorities, the public sector, and European partners will Ukraine be able to join the European Union.