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Country Review Report of Ukraine Country Review Report of Ukraine Review by Slovenia and Poland of the implementation by Ukraine of articles 15 – 42 of Chapter III. “Criminalization and law enforcement” and articles 44 – 50 of Chapter IV. “International cooperation” of the United Nations Convention against Corruption for the review cycle 2010 - 2015 1 Introduction The Conference of the States Parties to the United Nations Convention against Corruption was established pursuant to article 63 of the Convention to, inter alia, promote and review the implementation of the Convention. In accordance with article 63, paragraph 7, of the Convention, the Conference established at its third session, held in Doha from 9 to 13 November 2009, the Mechanism for the Review of Implementation of the Convention. The Mechanism was established also pursuant to article 4, paragraph 1, of the Convention, which states that States parties shall carry out their obligations under the Convention in a manner consistent with the principles of sovereign equality and territorial integrity of States and of non-intervention in the domestic affairs of other States. The Review Mechanism is an intergovernmental process whose overall goal is to assist States parties in implementing the Convention. The review process is based on the terms of reference of the Review Mechanism. Process The following review of the implementation by Ukraine of the Convention is based on the completed response to the comprehensive self-assessment checklist received from Ukraine, and any supplementary information provided in accordance with paragraph 27 of the terms of reference of the Review Mechanism and the outcome of the constructive dialogue between the governmental experts from Poland and Slovenia, by means of telephone conferences, e-mail exchanges, trilateral meetings or other means of active dialogue in accordance with the terms of reference of the Review Mechanism, and involving the following experts from the reviewing States: Poland Ms. Agnieszka STAWIARZ, Prosecutor, Division for Cooperation with the United Nations and OECD, Judicial Assistance and European Law Department, Ministry of Justice; and Mr. Stefan Rudecki, Deputy Director, Regional Operations Department, Central Anti- Corruption Bureau. Slovenia Ms. Vita HABJAN, Commission for the Prevention of Corruption. Secretariat 2 Mr. Dimosthenis Chrysikos, Crime Prevention and Criminal Justice Officer, UNODC/CEB/CSS; Ms. Thi Thuy Van Dinh, Crime Prevention and Criminal Justice Officer, Corruption and Economic Crime Branch, Conference Support Section, (DTA/CEB/CSS); and Mr. Vladimir Kozin, Crime Prevention and Criminal Justice Officer, UNODC/CEB/CSS A country visit, agreed to by Ukraine, was conducted from 27 to 29 February 2012. During the country visit, the members of the review team had meetings with officials from the following national institutions and agencies in Ukraine involved in the implementation at the domestic level of anti-corruption measures and policies: Ministry of Justice, General Prosecutor Office, Ministry of Internal Affairs, Security Service, State Tax Service, State Financial Monitoring Service and the High Specialized Court of Ukraine for Civil and Criminal Cases. Executive summary 1. Introduction 1.1. Legal system of Ukraine: incorporation of the Convention in the domestic legal system Ukraine signed the United Nations Convention against Corruption on 11 December 2003 and ratified it in 2006. The ratification law entered into force in July 2009. Ukraine deposited its instrument of ratification with the Secretary- General on 2 December 2009. According to article 9 of the Constitution, the UNCAC became, upon ratification, an integral part of national legislation with overriding legal effect against any other contrary provision of domestic laws. 1.2. Overview of the anti-corruption legal and institutional framework of Ukraine The national legal framework against corruption encompasses different pieces of legislation, including the Constitution, the Criminal Code (CC) and the Criminal Procedure Act (CPC). The CC came into force on 1 September 2001. The corruption- related provisions were subject to legal amendments, introduced by Law No. 3207-VI “On amendments to several legislative acts concerning liability for corruption offences”, as well as Law No. 3206-VI “On the Principles of Preventing and Combating Corruption”. Both laws came into force on 1 3 July 2011. Other specific laws include, inter alia, the Law on Prevention and Counteraction to Money Laundering (in force since August 2010) and the Law on Special Investigative Techniques. A new CPC was adopted by the Parliament on 13 April 2012 and enters into force on 19 November 2012. A Law on confiscation aiming at streamlining the domestic confiscation regime has not yet been enacted. The national legislation also provided for administrative liability for certain corruption-related acts. Law No. 3207-VI introduced a specific chapter on “administrative corruption offences”, into the Code of Administrative Offences (CAO). The experts took into account the parallel existence of both criminal and administrative corruption offences and raised concerns about potential overlapping and expansion of administrative offences at the expense of criminal. As an example, article 1723 of Law No. 3207-VI on active bribery may overlap with article 369 CC and further create confusion as to the high threshold of illegal benefit set forth therein. In response, the national authorities highlighted the secondary nature of administrative offences (article 9 of CAO) and referred to policy used to relieve criminal courts from backlog of criminal cases. In general, the review team welcomed the national efforts to strengthen criminal legislation against corruption and urged the Ukrainian authorities to continue such efforts with a view to further improving the anti-corruption framework in the country. Noting, though, that in recent legislative initiatives, either completed or still under discussion, there seemed to be a lack of linkages with, and cross-references to, other pieces of legislation in force, the review team emphasized the need to ensure that all legislative changes and updates are decided and implemented in a manner that guarantees complementarity, coherence, robustness and consistency of the anti-corruption legislation as the most effective deterrent against corruption. The review team expressed concerns that swift legislative changes might hinder sustainable development of the anti- corruption legislation as well as contribute to lack of legal certainty. The notes under certain provisions of the CC constitute an integral “commentary” accompanying the text of the provisions. The resolutions of the Plenary Session of the Supreme Court of Ukraine intend to provide guidance and interpretation on the application of legal concepts contained in the legislation, as well as to resolve ambiguities and ensure consistency of judicial practice. 4 The institutional framework domestically in place to address corruption refers to the competences and functions of, as well as coordination between, various authorities, including the prosecution services, the organized crime task force of the Ministry of Interior, the special anti-corruption and organized crime task force of the Security Service, as well as the State Financial Monitoring Service — the national FIU — in the field of money-laundering. A new National Strategy against Corruption for the period 2011-2015 was adopted in 2011 aiming at streamlining state anti-corruption policies and introducing measures to decrease the corruption level in the country. 2. Implementation of chapters III and IV 2.1. Criminalization and law enforcement (chapter III) 2.1.1. Main findings and observations The active and passive bribery of public officials are criminalized through articles 369 and 368 CC respectively. Article 369 CC refers to the “offering or giving a bribe”. The national authorities confirmed during the country visit that the “promise of a bribe” was lacking as a constituent element of the offence of active bribery, but they referred, instead, to the application of the general provisions of the CC on preparation or attempt to cover related instances. The bribery provisions of the CC employ the term “official”, which is defined in the note to article 364 CC (abuse of authority or office). This definition was substantially broadened through Law No. 3206-VI to include persons authorized to perform functions of state or local government, as well as persons who have been conferred the status of authorization to perform such functions. The latter category further includes officials of foreign States and officials of international organizations, thus ensuring that the bribery provisions are also applicable in relation to these officials. The provisions on active and passive bribery do not specify whether the offence could be committed directly or indirectly. The general provisions of the CC on complicity are applicable in this regard. The same provisions do not further expressly specify whether the advantage must be for the official him/herself or of a third person. The national authorities referred to relevant jurisprudence (Supreme Court Resolution No. 5) indicating that bribery also occurs in cases where the official receives an 5 advantage not for him/her personally but for the benefit of close persons (relatives, acquaintances, etc.). The 2011 amendments of the domestic legislation introduced two articles in the CC criminalizing bribery of persons who
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