2.1. The Anti-Corruption Strategy and The National Program for Implementation of the Anti-Corruption Strategy (National Program).
The first strategic national anti-corruption policies appeared in Ukraine in 1997. Until 2013, they were approved by Decrees of the President of Ukraine. In the period from 1997 to 2013, four such documents were approved. Since 2014, alongside the adoption of the Law on Corruption Prevention, the mechanism of their development, adoption, and implementation has changed.
In 2014, the Parliament adopted the Strategy for 2014-2017. It became the first document of such kind to be adopted at the level of law. Its adoption can be considered a significant positive step for the formation of Ukraine’s anti-corruption policy, as it has had a positive impact on the formation of the state’s anti-corruption infrastructure for the next three years. This Strategy was almost entirely developed by the public, as the NACP had not yet been established at that time. After open discussions, the finished draft strategy was submitted by CSOs to the Government, which finalized it and registered it in Parliament. In pursuance of this Strategy, a National Program was adopted in 2015, which was published immediately after its approval. The public was also actively involved in the development of the National Program. Both documents received positive reviews from Ukrainian and international experts. After the Strategy expired, the NACP and several NGOs submitted their reports on its implementation. Although the data in these studies differ, they all indicate incomplete implementation of the National Program. The NACP indicates that 64% of the planned measures were implemented. Instead, shadow reports by civil society provide figures of 60% and 40% of the implementation of the National Program. Even according to the most optimistic estimates, the National Strategy was not implemented in full. There are many reasons for this, and the expert community cites several factors that negatively affected the full implementation of the Strategy and the National Program—from lack of political will to lack of resources in government agencies to implement it.
The Anti-Corruption Strategy for 2014-2017 remains the last adopted Anti-Corruption Strategy in Ukraine. For more than 4 years, the new Strategy has not been adopted. The main reason for this is the lack of political will to adopt the document. For example, the draft Strategy for 2020-2024 has been stacked in Parliament for more than a year.
The development of anti-corruption strategies has significantly improved after the “re-boot” of the NAPC. The NACP developed a draft strategy, published it on its official website, and suggested that everyone interested submit their feedback. As a result, the draft Strategy was significantly revised with the active participation of the public and the Parliament. The final document received positive feedback from the expert community. This process differed significantly from the process of developing the Strategy for 2018-2020. The previous management of the NAPC almost did not involve the public, business, scientists, and other stakeholders in the development of that draft document. Consequently, it received several negative comments, was sent by the Parliament for revision, and was not adopted.2.2. Anti-corruption programs in public authorities / local governments and legal entities.
Anti-corruption programs in public authorities and local governments cannot be considered effective enough. Experts note that most of them do not work properly and do not perform their functions.
There are several reasons for this, which include:
- A formal approach to the development and implementation of anti-corruption programs. Civil society believes that the assessment of corruption risks is superficial and does not take into account all the peculiarities in the work of the respective agency/institution/organization. In addition, some experts also point out that the NACP verifies anti-corruption programs in a rather superficial manner as well, only checking them for compliance with formal legislative requirements before approval.
- Insufficient level of qualification of employees responsible for the implementation of anti-corruption programs. The expert community points out that those responsible for the implementation of anti-corruption programs assess corruption risks superficially and irregularly due to a lack of understanding of the objectives and principles of such assessment. Quite often, employees perceive anti-corruption programs as an additional burden, failing to realize the importance of this tool.
- Dependence of the implementation of anti-corruption programs on political will. Experts note that the actual effectiveness of the implementation of anti-corruption programs depends on the willingness of political leadership to implement certain measures and motivate those responsible for the implementation of the program.
The effectiveness of anti-corruption programs in private legal entities is quite difficult to assess. The public has no opportunity to monitor their implementation, and the NAPC can do it only during inspections. However, as practice shows, the NACP does not conduct such inspections. For example, in 2020, the planned inspections concerned only state bodies and state-owned enterprises. The experts we surveyed note that the effectiveness of anti-corruption programs in private legal entities so far depends on the motivation and willingness of the management to implement and enforce them. Large companies, especially in the technology (IT) and agricultural sectors, mostly have both effective anti-corruption programs and effective compliance departments.
At the same time, the methodological support for developing anti-corruption programs, which the NAPC provides, deserves a positive assessment. The NACP has adopted several documents that help the state bodies and private legal entities to develop a good-quality and effective Anti-Corruption Program, in particular: Methodological Recommendations on the development of state bodies’ anti-corruption programs; Examples of Corruption Risks Typical of State Bodies and Mitigation Measures; Template Anti-Corruption Program for a Legal Entity, institution/organization, etc. In addition, the NACP has prepared an online course on “Anti-Corruption Programs of Authorities” for officials, members of the public, and experts. The course is hosted on the open educational platform Prometheus and was attended by about 7,000 people.The publication of all approved anti-corruption programs and pending drafts by the NACP can also be considered a positive development. The public can submit their proposals to the draft anti-corruption programs by filling out a brief form on the NACP website.2.3. Corruption research.
The Law on Corruption Prevention authorizes the NACP to organize and conduct research to study the situation with corruption. In recent years, the NAPC’s activities in this direction deserve a positive assessment. Since 2019, the NACP has presented several analytical studies of anti-corruption tools and launched a separate focus area of strategic analysis of corruption risks to identify and eliminate corruption schemes. The research of the National Agency can be divided into three groups: research of anti-corruption mechanisms and institutions; strategic research of corruption risks; sociological research. Their results are used primarily for the formation of the anti-corruption policy of the state.
They form the basis of many law amendments and the development of the Anti-Corruption Strategy.
2.4. Reporting on the implementation of the national anti-corruption policy
- Research of anti-corruption mechanisms and institutions is carried out regularly, but not extensively. Since 2020, the NACP has investigated only one anti-corruption institution—authorized units (authorized persons) for the prevention and detection of corruption. Three analytical studies have been dedicated to this subject since 2020. The effectiveness and shortcomings of other anti-corruption mechanisms and institutions have not been dealt with by the NACP.
- Strategic researches of corruption risks are conducted quite regularly, consistently, and in different areas. Especially for this purpose, in 2020, the NACP established a department for analysis of corruption risks. Strategic researches of corruption risks are conducted in the sectors identified as priorities based on the basis of a separate study. In total, NACP conducted 5 studies of corruption risks in the land sector, 2 researches were done in the sector of public procurement, 2 - in the social sphere, one - in urban planning, and one - in defense. They have already shown their results, for example, one corrupt norm, which was found during the research, was excluded from the law.
- Sociological researches are not conducted regularly enough. In general, the NAPC held them twice, in 2017 and 2020. Both studies were supported by international partners. The results of the last study were applied for the development of the Strategy for 2020-2024. At the same time, the practice of the NAPC regarding carrying out a separate survey covering the experts from the public can be positively assessed.
National reports are a convenient tool for accountability and transparency. They are a source of basic information about government activities in the anti-corruption sector. All draft National Reports for the period from 2016 to 2020 are published on the official NACP website. Each of the published documents generally meets the legal requirements for mandatory information. There is also a general tendency for improvement of the quality of National Reports year-on-year. At the same time, the volume of National Reports is extremely large (from 150 to 400 pages). The NACP should consider the possibility of drafting a summary for the general public together with the National Report. The negative aspect is that not all draft National Reports are approved by the Cabinet. Also, not all of them are published on the website of the Verkhovna Rada of Ukraine.2.5. Ukraine’s interaction with international and regional organizations.
Since 1997, Ukraine has been a member of the Council of Europe’s Committee of Experts on the Evaluation of Anti-Money Laundering Measures (MONEYVAL). In 2017, MONEYVAL evaluated the measures taken by Ukraine to combat money laundering and terrorism financing and provided recommendations. The last (second) Progress Report and Reassessment of Technical Conformity Ratings for Ukraine were conducted in 2020. It states that Ukraine meets 11 recommendations, partially meets 6 recommendations, mostly meets 22 recommendations.
What merits particular attention is the negative practice to block the work of the main agency responsible for anti-corruption policy, the NACP, as well as the lack of sustainability, consistency, and a strong institutional memory in terms of international anti-corruption monitoring mechanisms. International commitments undertaken as part of international anti-corruption treaties have to be taken into account in the anti-corruption strategy for a certain period, and the latter should be in line with the assessment cycle within a given conventional mechanism.
On January 21, 2004, Ukraine adopted the Istanbul Anti-Corruption Action Plan as part of the “Anti-Corruption Network (ACN) for Eastern Europe and Central Asia” program initiated by the OECD Working Group on Bribery. In 2004, Ukraine received general recommendations, then the first round of monitoring started in 2006, the second one was launched in 2010, the third one - in 2015, and the fourth one - in 2017. According to the latest ACN report published in 2020, the average score for Ukraine’s implementation of recommendations provided within the fourth assessment round constitutes 75%. In 2021, the fifth round of monitoring has started for Ukraine. There is a practice that the National Coordinator for the implementation of the Istanbul Action Plan (a specific person with the name and position) is determined by the Resolution of the Cabinet of Ministers No. 553 (hereinafter the National Coordinator). In May 2016, when the NACP went into operation and thus Ukraine started implementing specific functions on coordination of Ukraine’s fulfillment of anti-corruption commitments established by the law, this practice remained. In March 2017, the head of a NACP department was appointed the National Coordinator, and shortly thereafter, when he was dismissed, a member of the NACP was appointed in December 2017. According to a former NACP employee, the personal appointment of the National Coordinator caused certain difficulties in organizational and managerial aspects of work. For example, all outgoing letters were signed by the NACP head, just as incoming letters were submitted for execution by the head’s resolution, and thus organizational difficulties often arose in situations when the National Coordinator needed to work directly. It seems like, considering the recent amendments to Resolution No. 553, with the National Coordinator to be appointed ex officio (namely, it is the deputy head of the NACP who is responsible for the anti-corruption policy and international cooperation), the lesson has been learned, and possible inconveniences have been eliminated. In addition, the capacity of the unit, which was and is entrusted with the functions of international cooperation, and which in fact can be informally considered the Secretariat of the National Coordinator, was and remains insufficient due to the small number of employees, which is only exacerbated by high staff turnover. For example, during 2016-2020, the unit employed 3 to 7 people. This is one of the reasons why ACN monitoring reports, as well as progress reports on the implementation of recommendations, have not been translated since 2017. There are also no translations of reports on conventional anti-corruption monitoring mechanisms, particularly GRECO.
Ukraine has been a member of GRECO since 2006 in connection with the entry into force of the Civil Law Convention on Corruption of the Council of Europe, although this convention was signed by Ukraine back in November 1999. Ukraine signed the CoE Criminal Law Convention in January 1999, but it did not enter into force until 2010, and the Additional Protocol entered into force in March 2010, although it was signed in May 2003. In respect of Ukraine, three rounds of GRECO have been terminated, the fourth round has been going on since 2017, and the fifth round has not been launched yet. The results of the study show an improvement in the situation with corruption in Ukraine after each of the three rounds of GRECO. For the period starting from the year following the accession to the GRECO, and until 2020, Ukraine is one of twenty amongst the GRECO countries whose average scores demonstrate a growth year-on-year. It is a good sign that during the entire period of GRECO membership, Ukraine has never been subject to the special procedure provided for in Rule 34 of the GRECO Regulation, which can be applied in case of violation of anti-corruption standards by a member state.
The NACP deserves respect for inserting the non-implemented and partially implemented recommendations given by the GRECO and the ACN into the draft 2018-2020 Anti-Corruption Strategy and the draft Strategy for 2021-2024 despite various obstacles and barriers.
What causes concern is that the NACP suffers from its long-standing inability to fulfill its functions on coordination of the international commitments taken by Ukraine in the anti-corruption sphere, as mentioned above. Apart from staffing shortcomings, the regulation of NACP capacity at the level of by-laws is of significant concern. Turning back to history, it was a question of the factual transfer of these functions from the Ministry of Justice of Ukraine to the NACP after its creation. Even though the NACP started functioning in May 2016 and the Cabinet of Ministers received the necessary draft act to regulate this issue, it was only in June 2018 when the by-law eventually assigned the GRECO and UN Anti-Corruption Convention-related functions to the NACP. In fact, over the first two years of the NACP’s functioning, the vectors of GRECO and UN Convention against Corruption were nearly blocked, which meant that employees were unable to acquire expertise, had difficulties in communicating within monitoring mechanisms, and were unaware of how to coordinate international commitments on the national level. Even though back in October 2016 a NACP representative was appointed as a member of the permanent delegation, but since June 2019 the delegation had no NACP representatives, and it took 2 years and 4 months when the new composition of the delegation to GRECO, headed by a NACP representative, was set particularly in October 2021 (a month after amendments due to the violation of Article 6 of GRECO Statute) and in November 2021. Considering the nature of GRECO’s work, it is concerning that the current delegation consists exclusively of elected political persons: the head of the delegation is the current head of the NACP, whose term of office ends in almost two years, and the others are MPs. On the one hand, in the current political situation, considering the established cooperation of the NACP with MPs, such a composition is justified, but on the other hand, in a couple of years, with the change of the political cycle in Ukraine, the delegation will have to be changed again. At the same time, it is again a question of the NACP staff obtaining expertise, forming and preserving institutional memory, in particular, work during GRECO plenary sessions, evaluation, monitoring of other member-states, possible participation in GRECO Bureau, expert groups, etc.
There is another example of the NACP’s inability to implement good initiatives in the field of international cooperation for one reason or another. The NACP is amongst the founders of the International Integrity Network and it seemed an ambitious and promising step for sharing the experience with other preventive agencies on the formation and monitoring of the anti-corruption policy, but no work is happening in this sector.
The NACP’s work on international anti-corruption monitoring mechanisms should be enabled again, and the NACP’s institutional capacity must be ensured. The regulatory framework must be sustainable as well.