On March 4, the Cabinet of Ministers of Ukraine finally adopted the State Anti-Corruption Program (SAP) with a delay of two months. Before that, the National Agency conducted a series of public discussions and approvals of the SAP with 140 interested bodies. The document was adopted with the revision of the draft, considering the comments of the government.
The State Anti-Corruption Program is a document that establishes a system of specific measures that are mandatory for implementation and are aimed at implementing the Anti-Corruption Strategy for 2021-2025.
In addition to the content of anti-corruption measures, the SAP also determines their executors (state bodies, local self-government bodies, courts, etc.), terms and indicators of implementation, as well as sources and amounts of financial resources necessary for the implementation of measures.
We support the adoption of such an important and long-awaited anti-corruption document, but we consider it necessary to share the experience of Transparency International Ukraine’s participation in the development of the SAP and its results.
According to the Law “On Prevention of Corruption,” the development of the SAP provides for the engagement of the public, and therefore the NACP held a series of public discussions, which were also attended by experts of our organization.
In total, the NACP held 11 public discussions of all components of the State Anti-Corruption Program for 2023-2025. Experts of TI Ukraine joined the discussions of the SAP sections on the formation of a negative attitude to corruption, financial control and conflict of interest, protection of whistleblowers, ensuring the inevitability of liability for corruption, corruption in the public sector of the economy, as well as fair trial, prosecutor’s office, and law enforcement agencies.
Below, we will discuss the positive aspects and shortcomings of the versions of these sections adopted by the government in more detail.
Experts of TI Ukraine joined the discussions of the SAP sections on the formation of a negative attitude to corruption, financial control and conflict of interest, protection of whistleblowers, ensuring the inevitability of liability for corruption, corruption in the public sector of the economy, as well as fair trial, prosecutor's office, and law enforcement agencies.
Formation of Negative Attitude to Corruption
To date, the SAP has a number of measures regarding two corruption problems mentioned in the Strategy.
Thus, the description of the problem, which is that corruption practices in everyday life are an established norm of behavior, may seem irrelevant in the following statement: “in Ukraine, there is no complete trust in the state and its key institutions on the part of citizens.”
Experts of TI Ukraine proposed to consider the relevance of mentioning the problem of lack of trust in the state in general after February 24. For its part, this statement could lead to not quite the correct development of relevant measures that can solve this problem.
Sociological studies show that often, even young people do not defend their violated rights. Thus, according to the survey “Human Rights in Ukraine” conducted in 2020, Ukrainians consider the following options to be the most effective ways to protect human rights: to appeal to the media (23%), to appeal to the court (21%), and to appeal to the European Court of Human Rights (20%). At the same time, the authors of the study note that 22% of our citizens believe that there are no ways to protect their rights in Ukraine at all.
Moreover, only 20% of respondents successfully defended their rights. Approximately equal shares of respondents (40% each) never tried to defend their rights or tried to defend them, but these attempts were in vain. Despite this, such indicators are much better than in previous studies.
The results of this study contrast slightly with another problem described in the SAP — that domestic corruption in Ukraine is still perceived as the best, and sometimes the only way to solve personal problems or meet urgent needs. According to TI Ukraine, the NACP could pay more attention to these studies. In particular, our experts mentioned them at the public discussion of the SAP and asked to consider them in the document because this could lead to the provision of a wider range of relevant measures in the Program, especially among young people.
The SAP currently pays attention to measures of integrating anti-corruption issues into the content of education at all levels. However, after the public discussion of the Program, it would be a great idea to consider the advice of experts and pay additional attention to teaching curricula about integrity in those educational institutions where such values do not prevail. It is also important that such curricula do not become the successors of the so-called “political briefing.”
Another problem mentioned in the SAP is the lack of an adequate information field in Ukraine to cover the implementation of the state’s anti-corruption policy. However, it is stated that such a situation is the result of an inadequate coordination of state communications in the field of preventing and countering corruption.
After the public discussion of the draft SAP, it has not become clearer whether one voice policy is generally achievable in conditions when different institutions have different tasks, even within the framework of the anti-corruption infrastructure (for example, the SAPO and the HACC). Therefore, it is probably inappropriate at the moment to form too high expectations about the possibility of solving this problem, which the NACP outlined in the SAP.
The last comment, not considered by the NACP, is a proposal to increase the indicator of the number of citizens who feel their own responsibility for the fight against corruption. Currently, the National Agency has shifted its focus to whether the citizens consider the NABU, the NACP, the SAPO, and the HACC to be responsible for combating corruption in Ukraine. This, for its part, can negate the impression of each citizen of a contribution to the fight against at least domestic corruption.
The description of the problem, which is that corruption practices in everyday life are an established norm of behavior, may seem irrelevant in the following statement: “in Ukraine, there is no complete trust in the state and its key institutions on the part of citizens.”
Conflict of Interest
Regarding the SAP section on prevention and resolution of conflicts of interest, one of the key shortcomings identified by the NACP is the lack of clarity and the unambiguity of the relevant terminology in the Law of Ukraine “On Prevention of Corruption.” In particular, we are talking about the definition of the concepts of “a potential conflict of interest” and “a real conflict of interest.”
However, nothing has been said, and the comment has not been considered that it is advisable to resolve the problem of different definitions of the term “conflict of interest” in different legislative acts. Thus, for example, the relevant definition in the Law “On Public Procurement” differs from the same definition in the Law “On Prevention of Corruption.”
As one of the reasons why the rules for the settlement of conflicts of interest provided in Section V of the Law “On Prevention of Corruption” are insufficient to ensure the settlement of conflicts of interest, the NACP refers to the fact that the law does not contain requirements for the form and procedure for reporting a conflict of interest. According to the National Agency, this causes uncertainty of actions for a person in the event of a conflict of interest and may result in bringing the person to justice.
TI Ukraine considers it inexpedient to approve the form of reporting a conflict of interest at the level of the Law. Instead, our experts advocated its definition by the NACP Order, as it was done, for example, regarding the form of the declaration of a person authorized to perform the functions of the state or local self-government. The Agency did not consider either this comment or the proposal that to improve the prevention and settlement of conflicts of interest, it would be expedient to adopt the binding Procedure registered with the Ministry of Justice instead of the current Methodological Recommendations of the NACP.
Among other problems that were not raised in the SAP, however, to which TI Ukraine experts drew the attention of the NACP were the following:
- contrary to the requirements of the law, the Agency does not apply an automated distribution of responsibilities for conducting inspections of possible violations in terms of conflict of interest and other related restrictions;
- in accordance with best practices, the NACP should introduce the practice of informing about decisions taken as a result of inspections of public statements about possible violations in terms of conflict of interest and other related restrictions. We proposed to systematically perform and publish the results of consideration of real circumstances and relationships in clarifications and recommendations. In addition, we advised the NACP to find ways to improve the use of such methodological recommendations and further develop communication channels with civil servants;
- the lack of a definition of the term “generally accepted notions of hospitality,” which has been repeatedly recommended by international experts, in particular GRECO, based on the results of the 4th round of assessment.
TI Ukraine considers it inexpedient to approve the form of reporting a conflict of interest at the level of the Law. Instead, our experts advocated its definition by the NACP Order, as it was done, for example, regarding the form of the declaration of a person authorized to perform the functions of the state or local self-government. The Agency did not consider this comment either.
Regarding the subsection of the SAP on the implementation of financial control measures, one can single out the following comments, none of which, unfortunately, has been considered by the Agency.
Firstly, the SAP proposes to revise and optimize the legislative regulation of the list of information to be reflected in the declaration. TI Ukraine experts asked to clarify what exactly was in question, since, currently, the amount of information that should be reflected in the declaration meets international standards and is often cited as best practice.
Secondly, among the main reasons provided by the NACP that limit the effectiveness of financial control measures, the problem of the lack of unity of the practice to conduct full verification of declarations was not mentioned and, accordingly, will not be resolved through the SAP. The need to expand the possibilities of obtaining information about the value of assets not only from the declarants themselves and the Kyiv Scientific Research Institute of Forensic Expertise, but also from other experts and expert institutions was left out.
In addition, TI Ukraine offered the NACP to join more memoranda of cooperation and information exchange with state and foreign authorities to more effectively conduct full verification. At present, the SAP provides for the conclusion of memoranda in six jurisdictions.
Moreover, TI Ukraine experts consider it appropriate:
- to develop a separate procedure for the full verification of declarations of NACP employees, and not to use the general procedure for the full verification of declarations;
- to stop hiding the rules of logical and arithmetic control of declarations from the public that previously issued the relevantstatement;
- to abandon the so-called“quick” checks of declarations as an autonomous procedure that jeopardizes full verification. This procedure was alsocriticized in the public space in 2021.
Thirdly, the SAP proposes, on the basis of a risk-oriented approach, to reduce the amount of information that is checked during a full verification and included in the document that is drawn up based on the results of the verification. TI Ukraine strongly opposed this initiative, since the full verification of the declaration is aimed at comprehensive coverage and analysis of all available information, and this is what allows identifying all corruption and corruption-related offenses that can be detected from the declaration.
Moreover, the NACP proposes to introduce a mechanism in the SAP to automate the compilation of materials on an administrative offense regarding late submission of declarations. According to experts of TI Ukraine, in the case of automation of the compilation of such materials, it will be impossible to establish the presence or absence of valid grounds for late submission of declarations, which is an obligatory element of identifying such an offense.
Furthermore, the NACP also ignored proposals to correct shortcomings in the current procedure for lifestyle monitoring, in particular:
- to adopt and adjust the Procedure for conducting lifestyle monitoring in accordance with the Law instead of the current unpublished methodological recommendations;
- to ensure public discussion during the adoption of such a Procedure;
- to specify in the Procedure the definitions necessary in the lifestyle monitoring procedure, for example,“lifestyle,” and other shortcomings that we described in detail in ourstudy.
However, the NACP in the SAP saw only a problem that the implementation of lifestyle monitoring was limited by the selectivity of the entities to which it can be applied, provided for by the Law “On Prevention of Corruption.” Instead, TI Ukraine believes that if the Agency expands the grounds for lifestyle monitoring, this means of financial control will be even closer in its form and content close to the procedure for a full verification of declarations, which should be avoided.
What is more, the NACP proposed to implement the submission of declarations in electronic form by the persons defined in Article 52-1 of the Law of Ukraine “On Prevention of Corruption” in case of compliance with security requirements and apply the procedure for conducting logical and arithmetic control and the procedure for monitoring the completeness of filling out such a declaration.
TI Ukraine experts, for their part, proposed to distribute special procedures for logical and arithmetic control and verification of declarations for a separately defined list of positions in each body, and not for the entire staff of the intelligence agencies of Ukraine and other entities specified in Article 52-1 of the Law.
We also urged the NACP not to conceal the relevant special procedures from the public. A separate procedure for monitoring the completeness of filling out such declarations also causes concerns because this approach echoes the previously mentioned “quick” checks of declarations that have already been criticized.
The SAP proposes to revise and optimize the legislative regulation of the list of information to be reflected in the declaration. TI Ukraine experts asked to clarify what exactly was in question, since, currently, the amount of information that should be reflected in the declaration meets international standards and is often cited as best practice.
Protection of Whistleblowers
Unfortunately, the SAP subsection devoted to the protection of whistleblowers did not consider certain positive proposals previously defined by the NACP itself in the version of the SAP, which was presented for public discussions.
Thus, measures related to the Strategy for the Development of Whistleblowing and Protection of Whistleblowers in Ukraine disappeared from the SAP. It would, for example, be particularly appropriate to pay attention to the proper communication of successful examples of whistleblowers’ rights protection and cases of bringing persons to justice thanks to reports of whistleblowers.
Some indicators of achieving the expected strategic results have lost in the clarity and ambition of their parameters. For example, the success of the whistleblower rights and guarantees awareness indicator has been reduced from 50% to 25% of the population, which may be too low.
However, the comment of TI Ukraine experts on the earlier launch of the Unified Portal of Whistleblower Reports was considered — it was moved from January 2024 to July 2023.
Our reservation on the lack of ambition, as for the Unified Portal, of the share of state bodies, local self-government bodies, legal entities of public law connected to it, in which, in accordance with the Law of Ukraine “On Prevention of Corruption,” internal communication channels should function, was also considered. This share began with 50% before public discussions, and now amounts to 100%.
However, after February 24, the following statement in the SAP looks irrelevant: “the willingness of persons to report possible facts of corruption or corruption-related offenses, other violations of the Law of Ukraine “On Prevention of Corruption” is quite low.” Recent sociological studies by the “Engage!” program have shown that the share of Ukrainians who are ready to report cases of corruption has almost doubled — up to 84% (compared to 44% in 2021).
A proposal that the cases of whistleblowers should be considered only by certified judges was left without the attention of the NACP. There is no mention of the need to introduce mandatory mediation before the dismissal of the whistleblower between them and the employer. According to TI Ukraine, it would also be advisable to distinguish between the pre-trial and judicial procedure for settling disputes between whistleblowers and the employer, so that the NACP no longer conducts a check if the whistleblower appealed to the court. This would help better optimize the use of limited resources of the NACP in the absence of territorial bodies. All these proposals were supported by the public in public discussions of the NACP.
In addition, to complement legal protection, we believe whistleblowers need protection from Strategic Lawsuits Against Public Participation (SLAPP). In order for whistleblowers to continue their activities, the courts must reject unreasonable abusive claims against them at an early stage, and expose the plaintiffs themselves for abuse of the law, procedural rights and apply sanctions to them. Appropriate changes in the legislation are needed, at least a study of this issue in the SAP, which does not raise this issue.
However, a number of measures envisaged by the program are undoubtedly worthy of approval, for example, if we talk about the development in February-August 2024 of a draft law designed to bring our legislation into line with international standards for the protection of whistleblowers. This, by the way, will also apply to the points that the public has emphasized from the very adoption of the specialized law — in particular, the need to introduce a broad definition of the concept of “whistleblower” and extend the guarantees of whistleblower protection to persons who contributed to reporting.
As a positive example, we can mention the planned introduction of the system of psychological assistance to whistleblowers in the SAP in July-September 2024. Today, the psychological assistance provided by law to whistleblowers is rather a declarative provision.
Measures related to the Strategy for the Development of Whistleblowing and Protection of Whistleblowers in Ukraine disappeared from the SAP
Ensuring Inevitability of Liability for Corruption
This section is pretty well addressed by the NACP. However, there are still some important comments that were not considered.
The SAP proposes to establish directly in the Law of Ukraine “On Prevention of Corruption” that the unconditional grounds for the dismissal of a public official are the entry into force of a court decision on the exemption of such persons from criminal liability.
TI Ukraine opposes this approach, since exemption from criminal liability means that there are legal grounds for a person not to serve the sentence imposed on them. It seems that if the state refuses to punish a person through criminal prosecution, then disciplinary liability for the same offense of unconditional dismissal without any procedure may appear disproportionate.
The document also proposes to transfer to the HACC the powers to consider cases of administrative offenses related to corruption and offenses in the field of political parties financing and their submission of financial statements. We believe that it is worth first exploring the possibilities of expanding the HACC’s specialization and its load. This will allow avoiding unnecessary risks of overloading the HACC, which has recently also been authorized to consider cases of imposing sanctions in the form of confiscation of property, as well as risks of going beyond the legislative specialization of the HACC.
The subsection on criminal liability should also include measures to introduce an automatic distribution of cases between prosecutors. Thus, GRECO, based on the results of the fourth round of evaluation, recommended introducing a system of random distribution of cases among prosecutors based on predetermined clear and objective criteria (including the criterion of specialization) in combination with adequate guarantees (including strict control measures) that will protect the system from any possible manipulation.
On the positive side, the SAP proposes to determine the unified (general) principles of bringing public officials to disciplinary liability if they violate the requirements of the Law of Ukraine “On Prevention of Corruption.” This will ensure not only administrative and/or criminal liability of corrupt officials, but also disciplinary, according to a clearly defined single procedure.
Moreover, the SAP proposes to eliminate the shortcomings of the procedure for bringing officials to administrative responsibility for corruption-related offenses, due to which a large proportion of such cases came to nothing (were closed). In particular, the SAP offers:
- to clearly regulate in the law the issue of return by courts of protocols on administrative offenses for their finalization;
- to exclude provisions that limited the terms of imposing a penalty for the relevant offenses;
- to legislatively provide that the closure of proceedings in such cases on the grounds of expiration of the terms is possible only if the fact of committing a wrongful act or omission by a person is established;
- to exclude corruption-related offenses from those for which a person may be exempted from administrative liability for insignificance;
- to provide the NACP with the right of appeal against court decisions taken in cases under the protocols drawn up by it.
The subsection on criminal liability also proposes a number of important and long-awaited changes, such as the obligation of all pre-trial investigation bodies, prosecutor’s offices, and courts to use the electronic criminal proceedings system. This will significantly improve the efficiency and quality of all criminal proceedings concerning corruption and corruption-related criminal offenses.
For example, with regard to the activities of the Asset Recovery and Management Agency (ARMA), it is proposed to:
– detail the procedure for determining the manager of the seized asset;
– determine the priority of criminal proceedings when deciding on the transfer of seized assets to the management of the ARMA and their management;
– introduce mandatory planning for the seizure of the asset, in respect of which the issue of its transfer to the management of the ARMA will be raised;
TI Ukraine has repeatedly stressed that these problems should be solved promptly.
The document also proposes to transfer to the HACC the powers to consider cases of administrative offenses related to corruption and offenses in the field of political parties financing and their submission of financial statements. We believe that it is worth first exploring the possibilities of expanding the HACC's specialization and its load.
Public Sector Economy
The NACP considered the comments of TI Ukraine experts to the measures for the implementation of the State Anti-Corruption Program for 2023–2025. In particular, we are talking about the need to:
- determine at the legislative level the requirements for the content of individual ownership policies at state-owned enterprises, which will include state property goals, the main tasks of state-owned companies, the main types of economic activity, performance indicators;
- determine the powers of supervisory boards to monitor the functioning of the internal control system, including the implementation of internal anti-corruption measures;
- develop a methodology for determining clear and transparent performance indicators for supervisory boards of state-owned enterprises as collegial bodies;
- bring the system of corporate governance in business entities to the standards of corporate governance of the Organisation for Economic Co-operation and Development. They also provide for the resumption of competitive selection of managers, heads of executive bodies, and members of supervisory boards of entities of the public sector of the economy, suspended in connection with the introduction of martial law;
- update the list of state-owned objects that are not subject to privatization;
- develop and adopt the Procedure for Conducting Electronic Auctions for the Sale of Large-Scale Privatization Objects by the Cabinet of Ministers of Ukraine.
Unfortunately, the Program did not include an independent audit of financial statements for all state-owned enterprises. Moreover, among the indicators of achieving strategic results, there are no clear criteria for classifying state-owned enterprises as “the largest.”
Unfortunately, the Program did not include an independent audit of financial statements for all state-owned enterprises. Moreover, among the indicators of achieving strategic results, there are no clear criteria for classifying state-owned enterprises as “the largest.”
Transparent Activities of the Anti-Monopoly Committee and Detailing of Leniency
In the section “State Regulation of Economy,” the NACP considers the following issues of the SAP as problematic: insufficient information on the activities of the Anti-Monopoly Committee of Ukraine (AMCU) in the public domain, granting it a number of discretionary powers, the implementation of which is difficult for the public to control, as well as the lack of an effective leniency program for cartel participants.
In order to overcome these factors, the Program provides for the improvement of the regulatory framework of the Committee’s activities for greater transparency. First of all, basic steps are planned: to streamline the planning and reporting of the AMCU, to open meetings of the Committee, its boards and branches (except for information with limited access), to introduce an open register of entities held accountable for anti-competitive concerted actions.
A positive step, which in our opinion will contribute to the transparency and homogeneity of the Committee’s practice, is to legally oblige it to publish the recommendations and explanations provided by the AMCU, and an exhaustive list of cases under consideration, and with specifics about the essence of the case, the stage and duration of its consideration, the grounds for extending such a period, the responsible state commissioner.
The Anti-Monopoly Committee of Ukraine (AMCU) has territorial branches, whose competencies include most cases of violation of legislation on the protection of local economic competition. Therefore, during the public discussion, TI Ukraine experts recommended extending the proposed innovations for the publication of comprehensive information on cases to the territorial branches. The proposal was considered in one of the indicators of the SAP implementation.
A part of the measures of the SAP is aimed at eliminating excessive discretion of the Committee in matters of starting the consideration of the case and the time limits of this process, determining and replacing state commissioners, principles for calculating fines, etc. For this, a number of issues are planned to be resolved at the level of the law. We support steps for the opening of the Committee’s work, as well as for minimizing the risks of unreasonable delays or suspension of proceedings.
However, the approved version of the SAP did not include measures aimed at:
– eliminating the discretion regarding the grounds to start considering the case of violation and refusal to do it;
– providing an opportunity to start consideration of the case on the basis of information on violations from direct and indirect consumers, public associations, the purpose of which is to protect consumers’ rights from violations of legislation on the protection of economic competition, collective statements;
– increasing the maximum amount of the fine that can be imposed by territorial branches.
In order to stimulate the disclosure of cartel conspiracies, the NACP in the SAP sets the goal of improving the mechanism of exemption from liability or leniency regarding cartel participants who have notified the Committee about it and provided relevant evidence. The developers of the SAP refer to the best practices of the European Union countries in this matter. The exemption will take place on the basis of a voluntary application submitted earlier than by other participants of the cartel and before the Committee sends preliminary conclusions in the case. The conditions under which such an exemption is possible will include disclosure by the AMCU of information on anti-competitive concerted actions, termination of participation in them, cooperation with the Committee on investigation, provision of evidence that the Committee did not possess. For other participants of the cartel, leniency is possible, provided that substantial evidence is granted, which the AMCU did not have.
TI Ukraine believes that any innovations regarding the cooperation of participants in cartel conspiracies with the Committee investigating these conspiracies should be implemented with caution and at the highest level of legal technique. In particular, it is necessary to make it impossible to avoid liability by those persons who intend to continue to commit anti-competitive concerted actions (for example, simply opening or acquiring another company for this). To prevent such cases during the public discussion of the SAP, we referred a proposal to the NACP to exclude the category of persons who repeatedly committed anti-competitive concerted actions from the circle of those who are allowed to participate in public procurement after the application of leniency. The NACP considered our proposal in the draft SAP.
However, the proposal of TI Ukraine experts to supervise the further competitive behavior of participants in anti-competitive actions exempted from liability, as well as related and controlled persons was not implemented. In order to avoid abuse of the leniency procedure, we proposed to pay increased attention to the further activities of such persons after their exemption from liability for anti-competitive actions. It is also considered risky to establish a deadline for filing an application for exemption from liability up to referring preliminary conclusions in the case, when the evidence is collected and the cartel participant may know about it.
However, the main part of the work on preventing pitfalls will take place at the stage of developing legislative changes, so we hope that these issues will be considered in the future.
Probably, it is at the stage of development of changes that the debatable issues of the SAP will have to be resolved, regarding which the developers of the NACP and the Committee have different opinions. Responding to the plans to publish a list of cases under consideration in the AMCU with details on them, the Committee, in its comments to the SAP, expressed concerns about possible pressure on officials investigating these cases. The AMCU also expressed its views on plans to introduce a single open State Register of Economic Entities held liable for anti-competitive concerted actions. The Committee refers to draft law No. 5431, which contains provisions on such a register, and also points to the restriction of access to some information during martial law and the publication of information about the beginning of consideration of such cases already now, as well as decisions on their results.
The AMCU also objected to the settlement of some issues at the legislative level, proposing to regulate them at the by-law level — by internal acts of the Committee. This concerns the procedural capabilities of the parties to the case, the determination and replacement of the state commissioner in the case, as well as partially the issue of the terms of the consideration of cases, and others.
The Committee’s comments also relate to issues of leniency, state aid to business entities, novelties in terms of nullity and the abolition of regulatory acts not agreed by the Committee. TI Ukraine does not support those of the AMCU comments that are aimed at maintaining excessive discretionary powers and/or insufficiently transparent practices (such as regulating issues that are significant for stakeholders by the Committee’s internal instructions, broad and insufficiently specified grounds not to start the case for reasons of “insufficiently tangible impact on competition,” etc.). In our opinion, the idea of basing the SAP provisions on the draft law 5431, to which the AMCU refers, is risky, since the parliament has not yet adopted this draft law.
At the same time, TI Ukraine experts recognize the expediency of public discussions on the basis of effective cooperation and mutual respect on such sensitive issues as the risk of pressure on the Committee’s employees. We hope that public engagement will help protect employees from pressure, in particular from big business.
In our opinion, the idea of basing the SAP provisions on the draft law 5431, to which the AMCU refers, is risky, since the parliament has not yet adopted this draft law.
Course on Digital Transformation in Public Procurement
In the field of public procurement, the NACP paid attention to the insufficient digital transformation of the state. The Agency attributes the causes of the problem, in particular, to the ineffectiveness of the preparation of tender documentation for public procurement in the field of informatization.
To overcome the problem, it is planned to develop and put into operation a new tool for the preparation and conduct of public procurement in the field of informatization. The tool will allow automating the calculation of the expected value of a product, work, or service, visualizing procurement statistics.
A positive point can be considered that in order to develop a tool, it is planned to conduct a study, which will help identify the real needs of procuring entities in the field of informatization and the needs of the functionality. It appears that this will increase the chances of the tool being applicable in real life.
During the public discussion of the draft SAP, the comments of TI Ukraine experts to some formulations, justification of the problem were considered, reference to insufficiently representative statistics was excluded.
At the same time, the description of the problem in the SAP on this issue is not clear enough. In particular, it remains unclear what conditions “regarding the necessary availability of an electronic communication network for a procurement participant” will help to form a new tool. And whether this will lead to the establishment of new qualification criteria for participants.
In our opinion, the insufficient quality of tender documentation for the procurement of high-tech goods is not the No.1 problem in the field of procurement in terms of preventing corruption. According to TI Ukraine experts, such problems as the lack of proper control over simplified procurement, conclusion of and reporting on direct contracts outside the tender procedures, especially under martial law, require anti-corruption measures. We hope for effective steps towards overcoming these problems.
According to TI Ukraine experts, such problems as the lack of proper control over simplified procurement, conclusion of and reporting on direct contracts outside the tender procedures, especially under martial law, require anti-corruption measures.
Fair Trial, Prosecutor’s Office, and Law Enforcement Agencies
In this subsection, the NACP considered all the comments and wishes of TI Ukraine experts — both in essence and in terms of technical issues.
In particular, we drew attention to the problem of the distribution of cases between courts and judges without considering the traditional rules of territorial jurisdiction. After all, this can create significant corruption risks, especially given the presence of district courts, where justice is delivered by one judge. These provisions were removed from the SAP.
Moreover, the SAP reflects the wish of TI Ukraine that it is necessary to unify the approach of the legislator to establishing such a penalty as deprivation of the right to hold certain positions or engage in certain activities. This is defined in the goal 188.8.131.52. concerning the need to work out the consistency and legal correctness of the grounds for liability for committing administrative offenses related to corruption.
The State Anti-Corruption Program is the key to effective anti-corruption reform in Ukraine, so it required the fastest adoption by the Cabinet of Ministers of Ukraine. However, the NACP’s consideration of individual proposals of the public when working on the document, unfortunately, leaves much to be desired. We hope that the SAP will have the impact that the society expects from it.
The legal analysis was prepared by the legal advisors of Transparency International Ukraine — Oleksandr Kalitenko, Nataliia Sichevliuk, Andrii Shvadchak, Anna Kuts, and Pavlo Demchuk.
This publication was prepared with the financial support of the European Union. Its content is the sole responsibility of Transparency International Ukraine and does not necessarily reflect the views of the European Union.