Centre for Eastern Studies NUMBER 170 | 06.05.2015 www.osw.waw.pl

Combating corruption in – the beginning of a long march

Marta Jaroszewicz, Piotr Żochowski

From a public opinion point of view, corruption has been the gravest problem of today’s Ukraine, excepting the armed conflict in the east of the country. The government might be able to delay certain key reforms such as the constitutional reform or the reform of local government structures, however, without stepping up measures to combat corruption they would face the risk of losing social support which has already been weak. There is no sin- gle strategy for combating . What has been implemented is a series of often contradictory concepts and actions (initiated by the president’s office, the government, civil society institutions, or launched to meet the requirements of donors). The successes of the new government have included efforts aimed at fighting corruption at the middle level of government and the introduction of legislative changes in compliance with international practice. The main weaknesses, on the other hand, have been the lack of efficient mechanisms to implement the adopted legislation to ensure that an individual charged with corruption (regardless of political connections) could be effectively tried and the money received as bri- bery could be returned to the state. Similarly, the judiciary system has not been prepared to actively handle corruption cases.

Corruption in Ukraine ing corruption effectively. Some countries focus on the harsh penalisation of corruption crimes Europe’s main anti-corruption convention, i.e. and increasing the effectiveness of the system the Council of Europe’s 1999 Civil Law Conven- of detecting and punishing corruption-related tion on Corruption, defines corruption as “re- offences. Other countries emphasise the need questing, offering, giving or accepting, directly for state institutions to function transparently, or indirectly, a bribe or any other undue advan- including giving citizens unrestricted access to tage or prospect thereof, which distorts the public information and making public assets proper performance of any duty or behaviour declarations pertaining to state officials. The required of the recipient of the bribe, the undue most widely-used instruments aimed at fighting advantage or the prospect thereof”1. Corrup- corruption typically include: the penalisation of tion can take various forms: from the most ba- various aspects of corruption, the creation of sic one such as bribery, through embezzlement an effective system of combating corruption of public property, nepotism and clientelism, to free from external influence, the confiscation of appropriation of state institutions by corrupt property obtained by way of corrupt practices, networks. There is no single recipe for combat- a reduction in all immunities which hamstring the prosecution of corruption-related offences, 1 Civil Law Convention on Corruption, ETS no. 174; Ukraine and the introduction of anti-corruption provi- ratified the Convention in 2005.

OSW COMMENTARY NUMBER 170 1 sions to rules and regulations pertaining to the to the local level. Secondly, politicians continue work of public officials. to be dependent on the oligarchs who sponsor Corruption in the West is different than that ob- them or in fact are oligarchs themselves who served in Ukraine. In the West, the main form of get involved in politics in order to pursue their corruption involves using private money to exert business objectives. Thirdly, the outbreak of the influence on public officials to persuade them armed conflict in the east of Ukraine and the emer- to make certain desired decisions. In Ukraine, gence of the uncontrolled territories has facilitat- on the other hand, corruption takes the form ed the emergence of new corruption schemes. of transferring public money to private com- panies2. Moreover, in Ukraine corruption is not just a system anomaly, but it forms an integral Corruption in Ukraine is of an institution- part of the system of the state’s functioning. al nature. It has produced a system of There are several levels of corruption: low-level informal relations of the authorities vs. corruption (related to the everyday life of citi- the citizen. zens), corruption at the middle level of govern- ment and large-scale . As far as the latter is concerned, two phenomena Corruption has been the main cause for soci- are typical of contemporary Ukraine: the ac- ety to be disillusioned with the policy pursued tual takeover of state institutions by corrupt by the new government. According to the re- networks, and also politicians’ dependence on sults of an opinion poll conducted in January big business and the sponsoring of political 2015 by the International Institute of So- parties by oligarchy groups. During Viktor Ya- ciology, commissioned by the Dzerkalo Tyzhnia nukovych’s presidency Ukraine was one of the weekly, nearly 80% of the respondents claimed most corrupt states in the world (in 2014 it was that corruption has remained unchanged after ranked 142nd out of 176 states in the Transpar- the change of power or that it has increased ency International Corruption Perception In- in scale. Meanwhile, the main objective of the dex). The years 2010–2013 can be referred to as Revolution of Dignity was to combat corrup- a period of actual illegal takeovers of key state tion3. Similarly, entrepreneurs have complained institutions by Yanukovych and his immediate that corruption and criminal ‘corporate raiding’ circle, aimed at appropriation as much funds (taking companies over by force on the basis from the state budget as possible. of counterfeit documents) have been the main cause for investors’ reluctance to locate their New trends investments in Ukraine, alongside the dire eco- nomic situation of the country. The change of power in Ukraine has eliminated Unlike under Yanukovych, currently there is no a number of the so-called ‘corruption schemes’ publicly available evidence for direct corrupt ac- associated with the old government. However, tivities carried out by top-level Ukrainian politi- several significant problems have been left unre- cians. Just like during the previous government’s solved. Firstly, corruption in Ukraine is of an insti- rule, accusations of corruption are mainly being tutional nature. It has produced a system of in- formulated towards individuals operating at formal relations of the authorities vs. the citizen the interface of public administration and the and of the subordinate vs. the superior occur- energy sector. These individuals reap profits ring from the highest level of government down 3 For more on this topic see T. Piechal, ‘Disappointment and fear – the public mood in Ukraine’, OSW Analyses, 14 January 2015; 2 R. Karklins, ‘Typology of Post-Communist Corruption’, http://www.osw.waw.pl/en/publikacje/analyses/2015-01-14/ Problems of Post-Communism, July/August 2002. disappointment-and-fear-public-mood-ukraine

OSW COMMENTARY NUMBER 170 2 mainly from dubious intermediary activities in Arseniy Yatsenyuk recently. In late February the field of purchase, sale and the processing he demanded that the interior minister clean of fuels; and from obtaining rebates, licences or up the situation in the , at the same loans from the state which they are not entitled time accusing the ministry itself of becoming to. Another practice which has been observed an “organised crime group”4. New corruption involves the heads of certain public institu- schemes emerged when the war in eastern tions or publicly owned companies persuad- Ukraine broke out. These include the practice of ing employees to move their current accounts bribing conscription boards to exempt specific to banks associated with these principals or individuals from military service or of Ukrainian to buy state-owned land for next to nothing. officials offering bribes in exchange for being Other very frequent corruption schemes occur- granted the status of a counter-terror operation ring in government offices and state-owned veteran (which exempts them from the compul- companies include: inflating the value of pub- sory lustration)5. lic tenders to transfer excess money obtained in the tender procedure to private accounts, Measures undertaken as well as managers forcing their subordinates to make unofficial monthly payments to their No major modifications in the state’s anti-cor- superiors. These types of practices were men- ruption policy were made immediately after the tioned in the charges brought against the head change of power in Ukraine. This delay has been of State Service for Emergency Situations and caused by the process of the new political order his deputy, both of whom were detained on being formed (2014 saw both presidential and 25 March 2015 during a government meeting. parliamentary elections) and by the fact that the government has focused on carrying out military actions in eastern Ukraine. It was only Accusations of corruption are mainly be- in autumn 2014 that legislative changes and ing formulated towards individuals oper- slow practical changes in combating corrup- ating at the interface of public adminis- tion in public institutions were launched. In De- tration and the energy sector. cember 2014, the Cabinet of Ministers adopted a new government agenda which for the first time contained an entire chapter devoted to Tax offices, fiscal monitoring as well as the cus- ‘new’ anti-corruption policy. In recent months, toms service, militsiya (i.e. the equivalent of actions aimed at bringing officials associated the police force in Ukraine) and other institu- with the previous regime to justice have been tions involved in issuing permits and licences intensified. At the same time, the government have been considered the most corrupt state launched institutional changes including in par- administration bodies. According to the www. ticular the formal establishment of the Nation- slidstvo.info website, systemic corruption still al Anti-Corruption Bureau. However, there has persists on Ukraine’s borders and for each car- been significant delay in implementing these go to efficiently pass customs clearance the changes. A reform of the prosecutor’s office so-called otkat (Ukr. vitkat; or ‘share’) must be and of the ministry of the interior is under way. paid. Average citizens are most affected by cor- Public tender procedures have also been modi- ruption in militsiya structures, including traffic fied. The increased activity of civil society activ- police. The scale of corruption in law enforce- ment structures has been indirectly confirmed 4 After http://www.rbc.ua/rus/news/yatsenyuk-poruchil-ava- kovu-provesti-kadrovye-chistki-v-mvd-24022015123000 by words spoken by Ukraine’s prime minister, 5 Details on lustration below.

OSW COMMENTARY NUMBER 170 3 ists and journalists is also worth noting. They etc.). Whether the law proves to be an efficient have managed to expose a number of corrup- anti-corruption mechanism will be evident once tion scandals and launch the project of com- it is fully implemented. Heads of specific state in- piling publicly accessible databases to disclose stitutions are responsible for the enforcement of public officials’ assets. the law, and the overall coordination of the pro- cess has been tasked to the Ministry of Justice. Legislative changes Currently, after nearly a year of the law being in The most important measure aimed at cutting force, it is evident that it is being observed to the links between the new government and the a varying degree: in some offices it has been en- corrupt regime established by Yanukovych was forced, whereas in others officials falling within the adoption in September 2014 of a law to the provisions of the law still hold their posts. clean up the government (lustration law)6. The law was an attempt at combining political lustra- tion (the verification of officials in terms of their The law on the National Anti-Corruption possible involvement in illegal decisions taken Bureau (NACB) provides for the creation by the Yanukovych regime and of officials who of a specialised body to protect public cooperated with the Communist system) with order by prosecuting corruption-related a top-down dismissal of corrupt officials associ- offences committed by public servants. ated with the previous government. Pursuant to this law, certain categories of officials (e.g. the prime minister, individual ministers and heads Another measure taken was the adoption of of other central offices, prosecutors and judges, a package of anti-corruption laws in October top-ranking military personnel) were subject to 2014 which included laws: on the National An- a ban on holding public office for ten years if ti-Corruption Bureau, on preventing corruption they had held these posts during the presidency and on the fundamentals of anti-corruption pol- of (lower-level officials faced icy of Ukraine for the years 2014–2017. Adoption a five-year ban). Some lower-level public servants of these regulations was a condition for Ukraine would not be automatically dismissed; instead, to receive macroeconomic aid from the EU and they would be subject to individual lustration. fulfil the EU’s requirements concerning visa-free The advantage of the law is that it has made it regime7. The law on the National Anti-Corrup- possible to dismiss a large number of corrupt tion Bureau (NACB) provides for the creation of officials, which would not otherwise have been a specialised body to protect public order by possible due to the inefficient judiciary. The dis- prosecuting corruption-related offences com- advantages, however, have included the risk that mitted by public servants8. Both the law on pre- the withdrawal from the system of proving each venting corruption and the law on the funda- individual’s guilt in a separate trial may be con- mentals of anti-corruption policy have the form trary to the provisions of the Ukrainian constitu- of documents/political platforms rather than tion. Another weakness of the law is that due to laws introducing legal standards. Nonetheless, purely opportunistic reasons, lustration is not in- their adoption triggered the implementation of tended to cover officials directly elected to their several significant changes. In late March 2015, posts (the president, members of parliament 7 EU releases €250 million of grants to support Ukraine, Brussels, 13 June 2014, http://europa.eu/rapid/press-re- 6 For more see T. A. Olszański, ‘The Ukrainian Lus- lease_IP-14-676_en.htm tration Act’, OSW Analyses, 1 October 2014; http:// 8 ‘Zakon Ukrainy pro Natsyonalne Antikoruptsyine Byuro www.osw.waw.pl/en/publikacje/analyses/2014-10-01/ Ukrainy’, Vidomosti Verkhovnoy Rady, 2014, No. 47, ukrainian-lustration-act p. 2051, http://zakon2.rada.gov.ua/laws/show/1698-18

OSW COMMENTARY NUMBER 170 4 the National Agency for the Prevention of Cor- tigations launched in 2014 concerned former ruption was established at the Ukrainian gov- prominent representatives of the Yanukovych ernment with the task of verifying the assets regime or public officials currently holding rel- declarations submitted by public officials. Oth- atively important posts. Previously, corrup- er changes have also been planned to increase tion-focused investigations had mainly targeted the state’s transparency, including: opening up lower-level officials holding posts in local gov- access to the state register of real property, the ernment or in regional branches of central gov- creation of a state register of individuals who ernment offices, public servants at the lower lev- have committed corruption-related offences el of central government or militsyia officers12. and the introduction of special anti-corruption screening procedures for public servants. Anoth- er important measure has been the introduction The National Agency for the Prevention of provisions making it possible to temporarily of Corruption was established at the confiscate the property and assets of individuals Ukrainian government with the task of suspected of corruption. This, for example, will verifying the assets declarations submit- make it possible to confiscate illegally obtained ted by public officials. assets belonging to former president and prime minister, both of whom fled to Russia9. The adoption in April 2014 of an amended public Immediately after the revolution, investigations procurement law was another significant change were launched focusing mostly on the former in the fight against corruption. According to EU president and former prime minister and their experts, the new law has been largely conver- closest relatives involved in the illegal practice gent with EU practice, in particular in terms of of transferring state-owned assets abroad. reducing the number of exceptions in which The process of disclosing offences committed the public tender procedure can be omitted10. against middle level officials in ministries, pub- lic institutions and local government bodies has Anti-corruption investigations also started slowly (Ukrzaliznytsia, the Ministry No Ministry of Justice data on corruption-relat- of Health, the fiscal service, customs service, lo- ed investigations launched in 2014 is publicly cal government units responsible for the sale of available. According to statistics compiled by state-owned land etc). This has been possible the General Prosecutor’s Office and made avail- mainly due to initiatives by social activists in- able to the media, between January and Octo- volved in combating corruption. ber 2014 approximately 2,000 corruption-relat- It was only in recent weeks (when the general ed investigations were launched (pursuant to prosecutor changed13) that the general prose- two major corruption-related provisions of the cutor’s office launched several new investiga- criminal code)11. In 2013, the figures were large- tions targeting former officials associated with ly similar. The difference, however, is that inves- Yanukovych (though corruption charges, which are the hardest to prove, were not a priority). The investigations launched included those fo- 9 ‘Zakon Ukrainy pro zapobiganiya koruptsyi’, Vidomosti Verkhovnoy Rady, 2014, No. 49, p. 2059, http://zakon2. cused on Oleksandr Yefremov (former leader of rada.gov.ua/laws/show/1700-18/page; ‘Zakon Ukrainy a faction within the Party of Regions), Mykhailo pro zasady dyerzhavnoy antikoruptsyonnoy polityki w Ukrainy na 2014-2017 roki’, Vidomosti Verkhovnoy Rady, 2014, No. 46, p. 2047, http://zakon2.rada.gov.ua/laws/ 12 Transparency International Ukraine, ‘Alternativnyi zvit shodo show/1699-18 otsinki efektivnosti dyerzhavnoy antikoruptsyonnoy polity- 10 EU Cooperation News, 16.12.2014, http://euukrainecoop. ki”, 2015, http://ti-ukraine.org/system/files/docs/news/alter- com/2014/12/16/eu-state-building-contract/ natyvnyy_zvit_shchodo_ocinky_efektyvnosti.pdf 11 http://www.rosbalt.ru/ukraina/2014/12/05/1345413.html 13 Vitaliy Yarema was replaced with Viktor Shokin.

OSW COMMENTARY NUMBER 170 5 Chechetov (a prominent Party of Regions politi- activity has also been noticeable in the general cian), and Yuriy Kolobov (former minister of fi- prosecutor’s office. In recent weeks, it launched nance). Similarly, in March 2015, the most con- a dozen or so new anti-corruption investiga- troversial judges who adjudicated in the cases tions. However, social activists involved in fight- of Yulia Tymoshenko and were ing corruption have made numerous accusations dismissed from their posts. In March 2015, cor- towards the Ukrainian government. According ruption charges were brought against several to them, the current increased activity is not of high-ranking officials currently in office. These a systemic nature but has been the result of included the head and the deputy of the State ‘manual control’ over law-enforcement agencies Service for Emergency Situations, and the head by the prime minister and the president aimed at of the State Financial Inspection. Due to profes- quickly achieving spectacular effects15. sional negligence the head of the State Road The degree to which a specific institution is able Traffic Inspection at the Ministry of the Interi- to combat corruption externally also depends or was also dismissed. Moreover, in April 2015 on whether it has a capacity to effectively elim- the Higher Committee for the Qualification of inate corruption from its internal structures. Judges dismissed five judges suspected of cor- Certain measures in this respect have been rupt practices, depriving them of their immuni- taken by both the Ministry of the Interior and ty and opening the way for criminal investiga- the prosecutor’s office. According to data from tions to be launched against them. the Ministry of the Interior, in 2014 20,000 of- ficers were dismissed from their service in the Institutional changes militsiya (with a further 20,000 to be dismissed Until the beginning of May 2015 none of the this year). This is aimed at making it possible to specialised institutions to combat corruption raise the wages of the rest of the employees to planned in the legislation had been established discourage them from taking bribes. A reorgan- in practice. Therefore as under the previous isation of the State Road Traffic Inspection (the government, the operational and investiga- ‘traffic militsyia’ – DAI) was carried out includ- tive activities are being carried out by the Min- istry of the Interior and the Security Service of Ukraine (SBU) which cooperate with the pros- The current increased activity, accord- ecution authorities. In recent months, these ing to social activists, is not of a systemic institutions increased their activities related to nature but has been the result of ‘manual combating corruption. One of the reasons be- control’ over law-enforcement agencies by hind this has been the significant delay in the the prime minister and the president aimed forming of the National Anti-Corruption Bureau. at quickly achieving spectacular effects. Due to this delay, the Ukrainian government decided to launch an anti-corruption offensive using the current institutional structure. This ing its incorporation into the patrolling service. has been confirmed for example by decisions Open competitions for some posts in the new made by Prime Minister Yatsenyuk to raise the traffic police have been announced and a re- salaries of employees of the Ministry of the In- form of the system of paid services rendered by terior involved in combating corruption or to the Ministry of the Interior (e.g. the issuing of form anti-corruption flying squads14. Increased documents) has been launched to reduce the

14 http://www.mvs.gov.ua/mvs/control/main/uk/publish/ article/1427611 15 Shabunin.

OSW COMMENTARY NUMBER 170 6 scale of corruption16. As far as the reform of the ti-corruption initiatives, have continued to play prosecutor’s office is concerned, the amended an important role in exposing cases of corrup- law on the prosecutor’s office of February 2015 tion. Moreover, non-governmental experts have has introduced a number of significant changes taken an active part in legislative work on new from the point of view of combating corrup- anti-corruption laws. Civil society organisations tion coupled with a review of how dependent (including Transparency International Ukraine, the Centre for the Prevention of Corruption, the Reanimation Package of Reforms) and special- There is little reflection as to how the insti- ised journalistic and social initiatives (Slidstvo. tution will function or on the competences info, Nashi Groshi, Koruptsyi Nii, Ukrayinska Pra- planned for prospective investigators. vda) are able to analyse and publish information on suspicious assets owned by public officials or expose cases of corruption at the middle lev- the prosecutor’s office is on political influence. el of government. It is obvious, however, that These changes include: eliminating the dubious without operational capabilities and access to task of exerting general supervision over entre- foreign data, they are unable to disclose cases preneurs and natural persons from the scope of of large-scale corruption, for example to trace duties of the prosecutor’s office, introducing the money transferred by the Yanukovych regime. obligation for official orders from a superior to Social activists have also raised society’s aware- their subordinates to be formulated in writing, ness of corruption. This has been possible due and expanding the scope of self-government17. to their active involvement in civil society groups The head of the general prosecutor’s office has at specific ministries. In some regions, activists also announced a reduction in the number of have also been employed by the SBU. prosecutors, which will make it possible to raise the salaries of the remaining employees and Cases of abandonment and delay to introduce an electronic documents system (a very significant change from the point of At present, Ukraine has had a relatively coherent view of the transparency of decisions). legal base in the field of combating corruption. Pursuant to the law on preventing corruption, The main problem of Ukrainian legislation, how- public officials have been obliged to submit ever, has continued to involve the clash between annual publicly accessible assets declarations individual legal standards, the arbitrary nature (by 1 April each year). Still, however, there is no of numerous legal provisions, and the lack of mechanism to verify these statements. This is due executive regulations to the adopted laws. Insti- to delays in launching the operation of the Na- tutional weakness has continued to be one of tional Agency for the Prevention of Corruption. the major problems of Ukraine’s anti-corruption policy. Serious delays, or even cases of abandon- Civil society measures ment, in the process of forming new anti-cor- Social activists and journalists supported by ruption institutions, have been clearly evident. a group of parliamentarians involved in an- What is equally important, however, is the col- lapse of the Ukrainian judiciary expected to try 16 http://uatoday.tv/politics/former-georgian-deputy-inte- individuals charged with corruption. rior-minister-lays-out-her-plans-to-reform-ukraine-s-in- terior-ministry-407941.html 17 ‘Zakon Ukrainy pro prokuratury’, Vidomosti Verkhov- The National Anti-Corruption Bureau noy Rady, 2015, No. 2-3, p. 12, http://zakon2.rada.gov. Ukraine has witnessed significant delays in the ua/laws/show/1697-18 Implementation of this law was originally intended for late April. However, it has been forming of the National Anti-Corruption Bureau postponed until July 2015.

OSW COMMENTARY NUMBER 170 7 (NACB). According to the adopted legislation, Other institutions the NACB was to be formed in January 2015. The future of the Anti-Corruption Prosecutor’s However, it was not until mid-April 2015 that Office and the State Investigative Bureau is the head of the Bureau was appointed18, and unclear, even though Ukrainian legislation re- so far no recruitment of employees has been quires these institutions to be established (in- announced. This generates the risk that the cluding the law on the prosecutor’s office and NACB might not start its operations this year, the 2012 code of criminal proceeding). The new especially since – pursuant to the law on the Anti-Corruption Prosecutor’s Office would be NACB – strict recruitment requirements have intended as a response to the problems posed been introduced. Meanwhile, the creation of by the lustration of prosecutors – prosecutors a professional, politically independent office or officers of law enforcement bodies employed to combat corruption may be the long-await- in the current anti-corruption units would be ed system change which could be followed by banned from taking posts in the new institu- other similar developments. Should the NACB tion. Currently, however, the Ukrainian govern- fail to perform its role, the fight with corrup- ment mentions the need to form this special- tion will continue due to the involvement of ised prosecutor’s office with ever diminishing civil society activists and investigative activists. frequency. Moreover, there are no executive Delays in the forming of the NACB seem to be regulations concerning its establishment. On the result of the excessive importance the gov- the other hand, the State Investigative Bureau ernment attached precisely to the appointment would be expected to be a special investigative of the bureau’s head (more than 170 candidates body dealing with complex criminal cases (in- submitted their applications in the first stage of cluding investigations against militsiya service- recruitment). Meanwhile, there is little reflec- men; it is unclear if the target group would also tion as to how the institution will function or include officers working for the anti-corruption on the competences planned for prospective in- bureau). The Security Service of Ukraine current- vestigators. This is confirmed by the very struc- ly holds these powers and would cease to be ture of the law on the NACB: most provisions a special service dealing with economy-related concern the system of appointing the bureau’s crimes; it would instead focus on tasks strictly head. It is also possible to have reservations re- related to counter-intelligence actions and the garding the wording of the NACB’s mission: the protection of constitutional order. There is seri- bureau is intended to combat corruption only ous concern that the powers of the NACB and among high-ranking central and local govern- the new investigative body might overlap. ment officials. However, the emphasis should The process of creating the National Agency rather be placed on the scale of economic for the Prevention of Corruption has reached damage suffered by the Ukrainian state (this a more advanced stage: in March 2015 the Cab- concept was the underlying principle of the inet of Ministers passed a relevant resolution19. provisions of the Polish law on the Central An- An open competition for agency board mem- ti-Corruption Bureau). This purely clerical word- bers is underway; however, no recruitment ing of the mission of the new bureau may be an of employees has been announced. The new obstacle in carrying out investigations targeted agency has mainly been vested with coordi- at oligarchs or businesspeople involved in brib- nation and preventive tasks. Its key task in the ing public officials. field of combating corruption involves collect-

18 Artyom Sytnyk, legal counsel and former prosecutor, has been appointed to that post. 19 http://zakon4.rada.gov.ua/laws/show/118-2015-%D0%BF

OSW COMMENTARY NUMBER 170 8 ing and verifying assets declarations submitted dures to be carried out in the case of suspected by public officials. Also in this case considerable corrupt practices among judges. Other recom- delay should be expected ahead of the new mended courses of action are: the requirement agency becoming operational – it will probably to organise open competitions when recruiting be unable to verify statements submitted this judges at all levels of the judiciary, to promote year (which are being submitted according to a further toughening of disciplinary measures the new standards). pertaining to judges, and the introduction of the electronic documents system20. Cleaning up the judiciary Reforming the judiciary has been a key chal- Conclusions lenge for Ukraine’s future. However, this issue reaches far beyond the framework of the an- (1) The Ukrainian government’s approach to ti-corruption policy. After the reform of the combating corruption (corruption has been judiciary carried out by President Yanukovych ranked second after defence of independence in 2010, judicial independence was seriously in- on the list of national challenges) confirms pos- fringed, and the president’s influence on bodies itive changes in the awareness of the problem of judicial self-government or individual judges among the political elite. Most probably, this is was increased. This has caused an increase in largely due to growing pressure by society, by the scale of judicial corruption and a surge in civil society activists and to international pres- criminal cases launched by political order. After sure. The process of abandoning the superficial the Revolution of Dignity, Ukraine’s parliament approach to adopted legal solutions (which enacted two laws on lustration (including one is typical of the Ukrainian political scene) has limited only to judges) which were intended to been clearly evident. help clean up the judiciary. The lustration re- sults have proved insufficient – the judges sub- (2) Most legal solutions passed by the new ject to lustration frequently continue to hold Ukrainian government have been in compliance their posts due to legal loopholes. Administra- with international practice. However, real suc- tive paralysis has spread to major institutions cesses in the fight against corruption can only of the judiciary such as the Higher Council for be confirmed when these solutions are fully im- Justice or the Higher Committee for Qualifica- plemented. Ukraine has been witnessing signif- tion of Judges. In January 2015, the parliament icant delays in the process of forming the new passed a law on securing the right to a fair tri- institutional system to combat corruption. The al. The law was intended to break the deadlock delays in forming the National Anti-Corruption within the judiciary, for example by introducing Bureau and in devising a system of verification the re-attestation of judges, increasing the role of assets statements submitted by public offi- of judicial self-government, introducing the cials are difficult to understand (civil society ac- principle of open competitions. These changes tivists have been emphasising this for months). are in compliance with the recommendations of the Venice Commission, but they also increase (3) The most significant challenge continues to the risk of current corruption schemes being be the need to renew personnel. This process preserved. It seems that a complete renewal is expected to take years, especially given that of the composition of judicial self-government it often meets with strong resistance on the bodies could be an effective method for com- bating corruption in the judiciary. Self-govern- 20 http://pravo.org.ua/2010-03-07-18-06-07/lawreforms/1893-ro- ment could launch obligatory screening proce- man-kuibida-pro-perevahy-i-nedoliky-novoho-zakonu-pro-za- bezpechennia-prava-na-spravedlyvyi-sud.html

OSW COMMENTARY NUMBER 170 9 part of the employees of law enforcement bod- the NACB will be delayed further still and that ies or of the judiciary. However, it is realistic. It the bureau itself will operate under conditions would be worth considering whether this pro- of rivalry for specific powers. cess should continue to be based on the prin- ciple of lustration. Perhaps currently it would (5) The system to combat corruption current- be better to organise open competitions more ly being formed has the fundamental flaw of frequently, to carry out obligatory verification placing its emphasis on state bureaucratic of employees’ skills and a similar screening pro- structures and limiting its focus on the middle cedure for possible corruption. level of government officials. Meanwhile, active steps need to be taken to combat corruption (4) In recent months there has been an increase among representatives of private businesses, in in activities aimed at combating corruption at particular in the context of public tenders and the operational level. However, the anti-corrup- of the actual supervision of private business- tion investigations which have been launched, people over state-owned property. in particular those relating to crimes committed by representatives of the former regime, should (6) The precondition of success in the fight have been launched last year. The more time against corruption in Ukraine involves carrying passes, the more difficult it will be to return the out a reform of the judiciary, including increas- illegally appropriated assets to the state trea- ing the scale of detectability of corrupt prac- sury. The fact that the anti-corruption powers tices among judges, limiting the immunity of are vested in ‘old’ institutions such as the Minis- judges suspected of corruption and reducing try of the Interior, the SBU and the prosecutor’s the level of tolerance for all aspects of corrup- office poses a risk that the process of forming tion among judges.

EDITORS: Adam Eberhardt, Wojciech Konończuk Centre for Eastern Studies Katarzyna Kazimierska, Anna Łabuszewska Koszykowa 6a, 00-564 Warsaw TRANSLATION: Magdalena Klimowicz phone: +48 | 22 | 525 80 00 CO-OPERATION: Nicholas Furnival e-mail: [email protected] DTP: Bohdan Wędrychowski The views expressed by the authors of the papers do not Visit our website: www.osw.waw.pl necessarily reflect the opinion of Polish authorities

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