On November 5, 2020, the Verkhovna Rada voted for the Anti-Corruption Strategy in the first reading and provisionally. During the last three months, MPs have been preparing and submitting amendments to it and relevant legislative amendments to the Law “On Corruption Prevention.”
On February 2, 2021, at the Verkhovna Rada Committee on Anti-Corruption Policy, as part of the preparation for the second reading, MPs will review draft Law No. 4135 on the fundamentals of the national anti-corruption policy for 2020–2024 (the Anti-Corruption Strategy), to which MPs have submitted 504 (!) amendments.
A significant part of these amendments pertains to section 3.1 of the Anti-Corruption Strategy “Fair Courts, Prosecution and Police.” Occasionally, they contradict Ukraine’s international commitments and bring us farther away from a real judicial reform. MPs seek to eliminate the mentions of the public and international experts on the independent commission for integrity assessment of new members of the High Council of Justice and the High Qualification Commission of Judges. Parliamentarians also prefer not to mention them in the competition commission for the formation of a disciplinary body in the justice system, if such a body is preserved in the Anti-Corruption Strategy in the first place.
A similar disregard in the integrity assessment may await the Public Integrity Council. Integrity and dismissals of current HCJ members through failure to pass integrity checks come into question because of such amendments, which absolutely cannot be supported. The same is true of applying the “reasonable doubt” standard in the integrity assessment.
Excluding verification of the legality of property belonging to a judge or their loved once, as well as eliminating the prohibition of holding an administrative position in court for a long time, which threatens interference in judges’ activity, are highly controversial proposals.
However, there are some positive amendments in this section. These include, inter alia, proposals to establish a transparent and objective competition for the Prosecutor General by an independent commission, for the leadership of the National Police and bodies conducting disciplinary proceedings against prosecutors, without political pressure and ensuring their impartiality. Transparency International Ukraine supports these amendments.
Another good parliamentary recommendation is to strengthen the institutional capacity of the Public Integrity Council.
Another popular section is 4.3 Criminal Liability. Lawmakers plan to improve the guarantees of institutional and operational independence of the Anti-Corruption Bureau and the Specialized Anti-Corruption Prosecutor’s Office, the activities of the Asset Recovery and Management Agency, and to render it impossible for other courts to consider HACC cases. These initiatives merit approval.
But there are also other amendments, which will negatively impact Ukraine’s anti-corruption system. They concern the exclusion of international experts from conducting an external audit of the NABU and the SAPO, the weakening of the SAPO’s status, the difficulty of detecting and tracking funds obtained by criminal means, and even excluding Art. 159-1 of the Criminal Code “Violation of the Procedure of Political Party Funding, Election Campaigning or Referendum Campaigning” from the investigative jurisdiction of the NABU.
Many provisions of the Anti-Corruption Strategy in other sections have also been amended. Among those that only improve the quality of this document, we can mention the amendment to improve the financial control of special entities under Article 52-1 of the Law “On Corruption Prevention” (section 2.4 “Implementation of Financial Control Measures“), as well as almost all amendments to improve section 2.3. “Regulating Conflict of Interest, Compliance with General Restrictions and Prohibitions, Ethical Code of Conduct“, which we already pointed out as requiring edits. We also remind you about the opportunity to update Ukraine’s CPI score in the introduction to the Anti-Corruption Strategy, since Transparency International has already presented updated information on January 28.
So, which specific amendments proposed by MPs should be supported and which should be rejected?
Regarding the content of the Anti-Corruption Strategy itself, the following main amendments should be taken into account:
- 254 on public involvement in legislative work;
- 263 on involving the business ombudsman in minimizing corruption risks and introducing effective regulation;
- 268 to clarify the problem of conflict of interest;
- 270 to ensure an appropriate response to identified conflicts of interest;
- 272 on the extension of restrictions on holding several positions;
- 273 and No. 274 on unjustified duplication of administrative liability for violation of restrictions after termination of civil service, etc.;
- 277 and similar in determining the standards of ethical conduct of local council members;
- 301 on improving the lifestyle monitoring procedure;
- 302 on improving the financial control of special subjects to declaration under Article 52-1 of the Law “On Corruption Prevention”;
- 307 on establishing a legislative list of significant violations of the requirements of the legislation on political parties;
- 316 indicating that harassment and discrimination against whistleblowers in the workplace or violation of their other rights is the exception, not the norm;
- 317 on facilitating the provision of psychological assistance to whistleblowers;
- 331 on open and rollcall scoring and voting by members of the HCJ and the HQCJ;
- 344 on strengthening the institutional capacity of the Public Integrity Council.
- 355 to clarify the nature of disciplinary practice concerning judges;
- 361 on effective mechanisms for initiating disciplinary proceedings against judges;
- 369 on outlining the problem of non-protection from political influence of the prosecution agencies;
- 370 on the introduction of an open, transparent and objective competition for the Prosecutor General by an independent commission to assess the professionalism and integrity of candidates;
- 373 on the formation pursuant to a new procedure, as well as transparent, objective, and unbiased activity of agencies which carry out disciplinary proceedings concerning prosecutors and selection for their positions;
- 375 on the introduction of a transparent and impartial competition for the leadership of the National Police with mitigation of the possibility of political influence on its activities;
- 474 on considering the standards of observing human rights and ECHR practice in certain investigative and other procedural actions;
- 482 on improving the guarantees of institutional and operational independence of the NABU and the SAPO;
- 490 on improving the activity of the ARMA, apart from clauses 1, 2, 9 of expected strategic results;
- 499 on improving the effectiveness of preventing and combating money laundering (conceptually);
- 503 on rendering it impossible for other courts to review HACC cases.
The following need to be rejected:
- 322 on the exclusion of the mandatory establishment of integrity as a legal requirement for members of the HCJ, HQCJ, etc.;
- 325 and similar to eliminate the mentions of the public and international experts on the independent commission for integrity assessment of new members of the High Council of Justice and the High Qualification Commission of Judges, which contradicts Ukraine’s international commitments;
- 329 on exlcuding reviewing the issue of dismissal of current HCJ members based on their integrity assessment (it is better to provide for dismissal due to failure to meet the requirements, as in amendment No. 327, as opposed to only putting this issue under review);
- 338-340 on the exclusion of application of the “reasonable doubt” standard in the integrity assessment;
- 342 and 345 on the exclusion of a clear mention of the Public Integrity Council in the integrity check;
- 348, 349 and 352 on the exclusion of a clear mention of the public and international experts from the selection board in the formation of a judicial disciplinary agency;
- 351 on the exclusion of a disciplinary body in the justice system as such;
- 357 on effective mechanisms for initiating disciplinary proceedings against judges;
- 358 and 359 on exclusion of introducing an effective mechanism for verification of legality of property belonging to a judge or their loved ones;
- 360 on the exclusion of the introduction of the institute of criminal liability of judges for arbitrary abuse of power;
- 362 on exclusion of introducing a mechanism to render it impossible for the same person to hold an administrative position in court for a long time;
- 363 and No. 366 on the exclusion of promoting the equitable distribution of cases between courts and judges;
- 364 on excluding expansion of the application of alternative dispute resolution methods and pre-trial settlement;
- 376 on the implementation of internal control of NABU by SIB officers, as well as the dismissal of heads of anti-corruption bodies due to the entry into force of a court decision to prosecute them for an administrative offense related to corruption;
- 410 on the exclusion of compliance with international standards of the principles of state property policy;
- 414 and No. 415 regarding the exclusion of the use of “Prozorro.Sale” from small-scale privatization or leasing of state and municipal property;
- 448 to exclude the possibility of involving international organizations in the procurement of medicines and medical equipment;
- 481 and No. 483 on the exclusion of strengthening of SAPO status;
- 486 on the exclusion of international experts from the NABU and SAPO external audit;
- 487-489 on exclusion of Art. 159-1 of the Criminal Code of Ukraine “Violation of the Procedure of Political Party Funding, Election Campaigning or Referendum Campaigning” from the investigative jurisdiction of the NABU;
- 491 and similar regarding the exclusion of simplification of detection and tracking of funds obtained by criminal means.
Principal amendments to the Law “On Corruption Prevention” should also be taken into account:
- 1, No. 2, No. 194 and No. 204 on the duration of the Anti-Corruption Strategy and the State Anti-Corruption Program to be amended from 2020-2024 to 2021-2025, as 2020 has already ended;
- 7 on the possibility for the NACP to instruct the relevant head on the need to ensure the proper implementation of the measures provided for in the Anti-Corruption Strategy and the State Anti-Corruption Program;
- 23 and No. 47 on the legal requirement for the Cabinet of Ministers to approve the State Anti-Corruption Program within 6 months of the entry into force of the Anti-Corruption Strategy
- 67 on the mandatory establishment of a Coordination Working Group on Anti-Corruption Policy
- 76 and No. 78 on publication by the NACP of the annual results of the State Anti-Corruption Program
And to reject amendments to this Law:
- 17 and No. 22 on the approval of the Anti-Corruption Strategy not by the Verkhovna Rada, but by the government;
- 24 and similar for the approval of annual state anti-corruption programs, rather than one for the entire duration of the Anti-Corruption Strategy
- 70-72 on reducing the responsibility of the head for the implementation of the State Anti-Corruption Program
- 74 on submission of information to the NACP on the situation with the implementation of the State Anti-Corruption Program with clear deadlines by the implementing agencies of the Program (and support amendment No. 94 requiring them to submit statistics on their work)
- 82, No. 83 and 40140 on the exclusion of monitoring and evaluation of the effectiveness of state anti-corruption policy
- 86 and No. 87 on the exclusion of the obligation to submit to the NACP statistics on its work from NABU, the prosecution, the police, as well as similar amendments on the narrowing of such statistics (No. 116)
- 149 and similar on the exclusion of the obligation to prepare a national report on the effectiveness of state anti-corruption policy and its approval by the Cabinet of Ministers of Ukraine
- 193 on the preparation of the annual national report not on the results of the implementation of the Anti-Corruption Strategy and Program
The legal analysis has been prepared by TI Ukraine’s legal advisor Oleksandr Kalitenko