2.1.1. Submission of declarations, their accessibility, and functioning of the declaration register
The submission of declarations can be called quite a complex process, especially for those who are submitting it for the first time. Difficulties may arise both with the correct display of information and with the submission process itself. To avoid them, the NACP conducts a campaign on the correctness of filling out declarations, which deserves positive assessments. In particular, the NACP:
- provides technical support (online and by phone) in case of difficulties and publishes recommendations on the work with the register;
- provides quite popular (as evidenced by many user reviews) clarifications on the correct filling out of declarations, which are regularly updated. They contain detailed instructions and explanations for completing each section;
- provides clarifications. According to the body, during the recent declaration campaign, the NACP provided more than 40,000 personal clarifications. Of these, 16,000 were provided by the NACP Contact Center, 25,000 answers were provided on technical issues, and 657 written answers were provided to requests on declaration.
- conducts training on correct declaration. In particular, a separate website dedicated exclusively to declaration has been created; a series of training videos on declaration has been created; a training project “Declare correctly” has been developed for declarants and all comers; the NACP website, Facebook and Telegram pages of the body regularly post messages, devoted to declaration in general and other specific issues.
In addition to the NACP, the public provides quite tangible assistance to declarants. For example, after the introduction of declaration, members of the public created a chatbot that allows declarants to fill out the declaration correctly. Individual government agencies and the NACP recommended using this tool on their official resources.
Despite the good work of the NACP in providing assistance on declaration, the issue of simplifying the process of filling out declarations remains quite relevant. For example, the automatic filling out of those sections of the declaration that contain information that can be obtained from other state registers (real estate, vehicles, etc.) has not yet been implemented. According to experts, the introduction of this mechanism would significantly facilitate the process of filling out declarations and reduce the number of unintentional errors. It is worth noting that the corresponding initiative to improve the register is laid down in the draft Anti-Corruption Strategy for 2020-2024, but the Parliament has failed to adopt it for more than a year (for more information, see Section ____).
The availability and openness of declarations can be positively assessed. All declarations, except for those of individuals performing functions related to the national security published in the Register. Access to declarations is open, free of charge, and round-the-clock. For convenience, the Register has a simple and intuitive search system. Declarations can be searched by the person's name, and the options found can be sorted by eight criteria. The system stores declarations from 2015 to the present day, during this time more than 6 million documents have been collected in the Register. Each declaration can be viewed in two formats — HTML (on-site) and JSON (machine-readable format). It is also important to note that thanks to open APIs, it is possible to import the declaration database to other platforms. So, for example, registers of declarations maintained by civil society organizations exist alongside. At the same time, it is worth mentioning that after updating the Register, there are certain problems with open APIs, in particular, they cannot be imported into other declaration databases.
However, there are some shortcomings in the registry maintenance process. The NACP is not able to perform its technical support on its own without outside support. As the public notes, a significant problem from the beginning of the register's operation (2016) to 2020 was the physical placement of the register's technical equipment outside the NACP premises in the “Ukrainian Special Systems” State-Owned Enterprise. This, according to the public, created threats of improper interference in the functioning of the register. In 2020, the equipment was moved to the premises of the NACP, which improved the situation, but did not change it significantly since, in 2021, the NACP signed a contract with the above-mentioned enterprise for technical support of the register, which actually restored the risks of illegal interference. That is why the public expresses concern and points out that it is necessary to ensure the ability of the NACP to independently perform technical support without any additional assistance.
2.1.2. Declaration verification
The law establishes only a list of types of verifications and establishes general provisions for their conduct. At the same time, the NACP defines more specific procedures for their implementation at the bylaw level. Each verification has its characteristics, so we will briefly present them.
1) Verification of the timely submission of the declaration, logical and arithmetic control, and verification of the correctness and completeness of filling out.
Verification of timely submission of declarations was introduced to identify cases of non-submission of declarations. It is conducted by local anti-corruption commissioners, who control the fact of submitting declarations by employees of their body/organization. In general, this type of verification can be called effective, which is confirmed by statistics. In 2020, the NACP received about 10,000 notifications from state bodies about the failure of their employees to submit declarations, which is 4,000 less than in the previous year.
Logical and arithmetic control (hereinafter referred to as the LAC) is an automated verification of declarations by comparing the submitted declaration with previous ones and comparing the declared information with state registers. The LAC is aimed at identifying “risky” declarations, which then the NACP sends for full verification. During the existence of this type of verification, the rules of its conduct have been changed many times. The LAC first started operating in 2018, but due to too low-risk ratios, the system offered many declarations that needed to be checked. Subsequently, the LAC rules were changed in 2020, but they were criticized by the public due to too high ratios, which would neither be effective in practice. For the third time, the NACP changed the LAC rules in 2021, but this time it did not publish them and does not provide these rules upon request, which also outraged the public. As of September 2021, the current LAC rules are unknown, which does not allow for their evaluation. The effectiveness of this type of verification can only be evaluated by individual publications of the NACP. In particular, one of the latter points out that all submitted declarations in 2021 (about 950,000) were checked with the help of the LAC, and on the basis of this, 63 full verifications were started.
As of September 2021, there is no verification of the correctness and completeness of filling out declarations, and there is no procedure for its implementation. It used to be conducted automatically by the Register's software, even during the submission of declarations. In particular, the filling out of all the necessary fields of the declaration was checked. At the end of August 2021, the head of the NACP issued an order on the procedure for monitoring the completeness of filling out declarations, which comes into force at the end of 2021. This procedure provides for automated verification of information in all declarations, which is conducted by comparing the submitted declaration with state registers. Then such information is additionally checked by NACP employees. It is not yet fully clear how such a verification differs from the LAC, since their methods coincide. However, it is possible that this type of verification will increase the volume of verified declarations. This type of verification has already been criticized by the public, who are concerned that such control will allow bypassing full verification of declarations.
2) Full verification of declarations
Full declaration verification is the main and comprehensive verification mechanism. It is aimed at finding out the accuracy of the declared information, the accuracy of the assessment of declared assets, the presence of conflict of interest and signs of illegal enrichment or unreasonableness of assets. Full verification of declarations is a crucial mechanism, on the quality of which the effectiveness of the declaration institution as a whole depends.
A full verification is conducted in accordance with the Procedure approved by the NACP. In general, experts and the public have no significant comments on this document and it can be called quite high-quality. At the same time, the expert community expresses some criticism regarding the mechanism of automated distribution of declarations subject to verification among NACP employees, since it does not provide sufficient guarantees against undue influence on the distribution process.
The effectiveness of full verification can be evaluated by quantitative and qualitative indicators. The first indicator is extremely low compared to the total number of declarations submitted during the year, but at the same time, it is quite high if we consider the resources available to the NACP. Annually, the NAPC performs about 1000 full verifications of declarations, which can be assessed positively. At the same time, verified declarations account for only 0.1% of the total number of declarations filed annually.
Taking into account the number of submitted declarations (about 950 thousand annually), priority in full verification is given to the declarations of persons holding responsible positions or positions with high corruption risks. This approach is justified because it allows addressing top corruption, but it has several disadvantages. In particular, declarations of lower-level civil servants are practically not checked. This significantly reduces the effectiveness of the declaration in regions and allows lower-level civil servants to avoid liability for submitting false information in declarations. It is possible to increase the effectiveness of full verification by increasing the resources of the NACP, because, according to experts, the body does not have enough resources to carry out effective control of declarations.
In turn, the quality of verifications has significantly improved lately. In particular, according to experts nowadays, a more thorough verification is conducted on signs of illegal enrichment or unjustified assets. For example, recently, according to the results of a full verification, NACP employees found signs of illegal enrichment in the amount of approximately EUR 1.1 mln. Statistics also partially confirm the statement of experts: in 2020, out of 446 declarations, 131 were found to have violations (in 29% of cases), of which 97 declarations (in 21% of the total number) showed signs of a criminal offense.
However, there are also some comments on the quality of full verifications. Experts are concerned about the cases when the NACP did not notice signs of a possible false declaration, despite availability of information in open sources. In addition, in their opinion, there is a need for a unified approach of the NACP to certain aspects of declarations and enhancing international cooperation to identify undeclared assets. Experts also believe that NACP employees spend quite a lot of time during the implementation of this type of control checking insignificant information, such as the correct spelling of street names, addresses, and so on.
The decision of the Constitutional Court in case No. 13-p/2020, which declared certain provisions of the Law On Corruption Prevention on declaration unconstitutional, significantly affected the effectiveness of conducting full verifications of declarations. This decision resulted in the suspension of 530 full verifications and the closure by law enforcement agencies of 4,712 criminal proceedings on declaring false information. In addition, one of the most significant consequences of this decision was the inability to hold liable the persons who lied in the declarations for 2020.
3) Verifying declarations of a particular category of persons
The procedure for verifying declarations of a certain category of persons remains closed to the public. In particular, we are talking about employees of intelligence/counterintelligence agencies, the SBU, and persons whose activity is related to state secrets. The NACP did not provide such verification procedures even at the request of civil society organizations.
Verification of declarations of these persons is carried out in a manner not set forth by law. It is conducted by the internal control unit of the NACP, and declarations are selected for verification according to a specially established procedure. The public criticized this approach of the NACP, in particular, noting that the internal control unit of the NACP should perform other functions under the Law On Corruption Prevention. Experts believe that the selection of such declarations for full verification should take place in a general way and only with a single feature — the verification should be carried out by NACP employees who have access to state secrets.
Certain features in the verification of declarations relate to the declarations of judges and judges of the Constitutional Court. Such declarations used to be checked in a general way, but after the mentioned decision of the Constitutional Court, the legislation changed. In particular, it provided for the adoption of a special procedure for conducting full verifications of declarations, which should be coordinated with the HCJ and the Constitutional Court. The NACP developed and submitted a corresponding document for approval. However, due to the refusal of such approval by representatives of the judicial authorities, full verification of the declarations of judges and judges of the Constitutional Court is conducted in the general way (the law provided for such an option in case of refusal of approval). But still, certain features remained. In particular, before starting a full verification of the declaration of a judge or a judge of the Constitutional Court, the NACP notifies the relevant authorities (the HCJ, and the Head of the Constitutional Court) about this. In addition, a certificate based on the results of such a verification can only be signed by the Head of the NACP, or his or her deputy.
2.1.3. Ways to conceal property in the declaration
The first attempts of declarants to conceal their property were realized together with the submission of the first declarations in 2014. Over time, the legislation developed and gradually eliminated the loopholes that made it possible to circumvent it. However, along with the development of legislation, new or old schemes for concealing property appeared or were modernized. As of the date of writing this report, there are quite a lot of such schemes, but none of them is perfect because they can be discovered by the NACP, the public, or journalists.
Here are the schemes of concealment of property that experts in our survey recognized as the most common:
1) Declaration of property and assets for family members who do not need to be indicated in the declaration. Declarants often use this method to conceal their property. It consists in registering property, business, and other assets for close relatives (parents, parents of the wife/husband, brothers/sisters, etc.) that do not need to be indicated in the declaration. This practice allows using the relevant property partially, or making a profit from it, without declaring it. Such schemes are often exposed by journalists. Just at the time of writing this report, a journalistic investigation was published in which it was claimed that the mother of the current MP during his work in the Parliament acquired property worth about EUR 450,000.
2) Registration of property for enterprises. This scheme consists in registering property (real estate, vehicles, etc.) for enterprises that are owned by the declarant. Accordingly, the declarations indicate only the presence of the enterprise, but do not indicate all the property that is registered for the enterprise and which the declarant is constantly using. Experts point out that when using this scheme, it is very difficult for the authorities to prove the fact of using property for the purposes of the declarant, and not for the purposes of the enterprise, which actually does not allow holding persons liable.
3) Underestimation of the value of declared assets. When buying/selling assets, declarants (and other persons) artificially underestimate their value of through the necessary property appraisers. Although, when buying/selling, they pay the real cost. This allows to pay less transaction taxes, as well as bypass the maximum cash payment thresholds (EUR 1,500) and the thresholds that are the basis for financial monitoring (EUR 4,500). As a result, the declarations may reflect luxury cars or real estate worth EUR 1,500-4,500. This, in turn, allows bypassing the LAC, which will not consider the value of the declared property as a basis for increasing the risk of the declaration.
2.1.4. Lifestyle monitoring
Lifestyle monitoring is a financial control measure that is conducted by the NACP to establish whether the standard of living of declarants corresponds to the property they and their family members have and the income they receive according to the person's declaration. Lifestyle monitoring is conducted on the basis of the information obtained from open sources or received from individuals or legal entities. Based on the results of monitoring, a full verification of the declaration may begin, or the NACP notifies the relevant authorities about the detected offenses.
Lifestyle monitoring was first implemented in 2020, 6 years after its introduction. Such a long pause is primarily due to the lack of a procedure for conducting such monitoring, which the previous composition of the NACP could not approve. After the reboot of the body, the new Head, by his resolution, approved for use Methodological Recommendations on the Procedure for Selective Monitoring of the Lifestyle of Declaration Entities. Based on these recommendations, the NACP conducted 47 monitoring sessions in 2020, as a result of which 7 full verifications of declarations were conducted. Subsequently, lifestyle monitoring, along with other anti-corruption tools, was declared unconstitutional, but the Parliament returned it. In 2021, the NACP stated that based on the results of monitoring the lifestyle of an MP, a lawsuit was filed to recognize assets as unjustified. Later, this case became the first successful practice of applying the institution of civil forfeiture in Ukraine.
Despite some progress in the application of this tool, the expert community expresses doubts about its effectiveness. Based on the results of a recent comprehensive study of lifestyle monitoring, experts came to the conclusion that this tool should be properly improved, or such powers should be transferred to the NABU, or abolished altogether. The author of this study, during an interview had a few months after publication, states that he is mostly for the latter option. In particular, the study highlights several significant shortcomings in the current process of lifestyle monitoring, such as:
1) The monitoring is improperly regulated. Lifestyle monitoring is based on Methodological Recommendations, and not on a Procedure; this contradicts the Law On Corruption Prevention. An inadequate basis for monitoring can, in turn, be grounds for challenging the legality of its implementation, which is unlikely to contribute to the effectiveness of this tool. Moreover, the Methodological Recommendations have not been properly registered and are still not published, they are applied on the basis of a resolution of the Head of the NACP, the legal force of which raises certain doubts.
2) Lifestyle monitoring actually repeats the procedure for full verification of declarations. According to experts, the NACP did not properly distinguish between the procedure for monitoring and full verification of declarations. Both methods of control actually use the same tools, mainly providing for “desk” verification. This leads to duplication and dispersion of NACP resources, since after monitoring (if violations are detected), a full verification begins.
2.2. Conflict of interest
The main body that monitors and controls the implementation of legislation on conflict of interest is the NACP. However, a number of other bodies have similar powers. For example, the Council of Judges of Ukraine monitors the implementation of legislation on conflict of interest in the activity of judges, and the Council of Prosecutors of Ukraine monitors the same in the activity of prosecutors (for more information, see Section ___). However, the National Police (NP) has greater powers to monitor compliance with the legislation on conflict-of-interest issues. The only difference between the NACP and the NP is the subjects, in respect of which these bodies have the right to draw up protocols. Since 2020, the NACP has been drawing up protocols for violating the legislation on conflict of interest exclusively in relation to high-ranking officials (persons holding responsible positions or positions with a high risk of corruption risks), and the NP deals with other subjects.
Despite several bodies that have powers in this area, most attention should be paid to the NACP itself, since it is this body that is responsible for monitoring and providing clarifications (recommendations) on conflict of interest. To effectively exercise its powers in this area, the NACP uses several tools: draws up administrative protocols in case of violation of the law; issues precepts on violation of legal requirements; conducts monitoring; provides individual and general clarifications, as well as methodological recommendations.
Quantitative indicators of the performance of the NACP in respect of monitoring and control over the implementation of legislation on conflicts of interest are quite high. In 2020, the NACP:
- Conducted more than 1,000 monitoring and control activities regarding prevention and resolution of conflicts of interest and other restrictions on corruption prevention. The result was the resolution of a potential conflict of interest in the activity of 57 people;
- Issued 31 precepts for violation of the requirements of the law on ethical behavior, prevention, and resolution of conflict of interest, other requirements and restrictions stipulated by the Law of Ukraine “On Corruption Prevention”;
- Directed 95 requirements on identifying and/or resolving conflict of interest;
- Provided 942 individual clarifications regarding the absence/existence of conflict of interest.
The civil society experts have a number of problems related to the use of these instruments. In particular, experts point out that the mentioned monitoring and control conducted by the NACP is not regulated in any way. In other words, there is no procedure for conducting it that would determine the main aspects – terms, powers of persons conducting monitoring, and so on. The public noted this back in 2019, but the NACP has failed to adopt the relevant document during this time. Another disadvantage of this tool, according to experts, is the lack of automated distribution when performing such monitoring, which is contrary to the law and does not contribute to objectivity and impartiality. In addition, experts comment on the NACP’s practice of sending the above-mentioned requirements for identifying and/or resolving conflict of interest. Since the only act of response of the NACP to violations can be a precept, sending letters is rather a measure of informing, especially since the NACP does not publicly provide criteria for distinguishing between a precept and a requirement.
The legislation on conflict of interest, according to experts, is comprehensive and complete. However, it is complex, and its application is not always the same. An interesting opinion on this issue was expressed by one of the experts we interviewed. He pointed out that “for quite a long time of existence of these norms (regarding conflict of interest), even judges do not fully understand how to apply them correctly.”
Due to the complexity of the legislation, the NACP has the function of providing individual and general clarifications (recommendations) on the application of the legislation. The performance of the NACP in this direction can be assessed quite positively. Thus, the NACP has published these clarifications on its website and regularly updates them. In particular, they contain information about the main aspects of conflict of interest, its components, the procedure for identifying conflict of interest, the procedure for resolving conflict of interest, and so on. Taking into account the ratings of readers on the site, these clarifications are quite positively evaluated. They are available in two formats — HTML (for reading on the site) and PDF (in which the information is presented more easily and is visualized). The Head of the NACP separately pointed out that the development of these clarifications was realized to implement the UN Convention against Corruption. Experts positively assess the publication of the draft methodological recommendations for commenting, as well as the availability of more practical examples. However, they note that their quality may be better, in particular, in their opinion, complex issues of law enforcement were ignored. They also suggest that the NACP create online simulators of potential conflict of interest situations so that civil servants can train. The NACP website also has a special section for submitting requests for individual clarification. Upon receipt of such a request, the NACP assesses the situation and provides its opinion on the presence or absence of conflict of interest in a particular situation. If the NACP indicates that there is no conflict of interest, but it was still identified, the person who received clarifications and performed certain actions is released from liability.
The NACP’s educational work on conflicts of interest also deserves a positive assessment. In 2020, the Integrity Building Office of the NACP launched an online course “Conflict of Interest Explained” dwelling on its main aspects. In addition, the NACP has developed an online course “Conflict of Interest: Things You Should Know! From Theory to Practice,” which can be viewed on the Prometheus educational platform. In the first year, 31,000 students attended it, of which more than 23,000 received certificates of successful completion of the course. Recently, in 2021, the NACP has launched another training project (a series of videos) on conflict of interest on the YouTube platform.
The public also appreciates an important role in the prevention of conflicts of interest. It was representatives of the public sector who created the online tool “Hidden Interests,” allowing to automatically identify conflicts of interest in the activity of civil servants. It combines important state registers and, based on data analysis, identifies situations that may indicate conflict of interest in the activity of individuals. The specified tool can also automatically analyze official documents for conflict of interest when they are accepted. In the near future, “Hidden Interests” will be transferred to the NACP.
2.3. Administrative liability
Administrative liability is the main type of liability for violation of the Law On Corruption Prevention. It is designed to deter from violating the requirements of the law and ensure the inevitable punishment of offenders. In Ukraine, administrative liability differs significantly from criminal liability. In particular, it is characterized by simplified standards for protecting the rights and interests of the person being held liable, as well as a distinctive procedure for considering cases by courts. For example, in administrative cases, the terms of bringing to justice and the statute of limitations are significantly shorter, the inability of the prosecution to contest decisions (in individual cases), the lack of appeal in cassation, and so on.
Despite the rather high importance of administrative liability for the effective fight against corruption in Ukraine, it has some disadvantages that greatly reduce its effectiveness. In the National Report for 2020, the NACP published comprehensive statistics on the consideration of administrative cases related to corruption for 2018-2020. On its basis, it is possible to understand the general state of effectiveness of the institution of administrative liability in the commission of individual offenses. For the purposes of this paragraph, we will highlight 3 main groups of administrative cases — corruption-related offenses (violation of requirements for preventing and resolving conflict of interest, violation of financial control requirements, etc.), “party” offenses (failure to submit financial statements and violation of requirements for contributions to support the party), and failure to comply with the requirements of the NACP. It is these 3 groups of offenses that we have considered in this report in different sections.
Based on statistical data, studies of judicial practice and information obtained during interviews with experts, the following shortcomings of the procedure for bringing to administrative liability can be identified.
1) Return of cases for revision
After detecting an offense, authorized persons draw up an administrative report. Then it and other case materials are referred to the court. Based on the materials received, the courts decide whether there are grounds for opening an administrative case. If there are any, then consideration of the case begins, and if there are no grounds, the court must refuse to open the case.
However, judicial practice has developed in such a way that if the courts identify certain shortcomings in the case materials, they return them for revision to the relevant body. However, such a procedure is not envisaged by law at all. According to statistics, in 2020, the courts returned 6% of cases on offenses related to corruption (hereinafter referred to as corruption-related cases), 13% of cases of “party” offenses (hereinafter referred to as “party” cases), and 4% of cases for non-compliance with the NACP precept. In absolute terms, a total of 529 cases were returned in 2020. The highest percentage of return accounts for cases related to violations of the procedure for receiving contributions by parties — 31%. The second-largest number of returned materials accounts for an offense related to violation of the requirements for receiving gifts — 15% of cases. The return of case materials, according to scientists, is associated with procedural (for example, violation of requirements for the content of protocols, violation of the rights of the person being held liable, etc.) and technical (non-compliance with technical requirements for the design of case materials, content contradiction of the protocol, etc.) shortcomings.
The main consequence of the return of cases by the courts is the impossibility of bringing persons to justice, since the terms of bringing expire during the completion of the protocols. However, it is worth noting that the number of returned cases decreases over the years. For example, in 2018, 13% of corruption-related cases were returned, the next year — 10%, and in 2020 — only 6%. This may also indicate that the quality and processing of administrative cases is growing every year, and the NP and the NACP are gradually forming judicial practice and gaining experience.
2) Closure of administrative cases
If the court decides that the materials of the administrative case have been drawn up properly, it opens administrative proceedings and proceeds to consider the case. After reviewing the materials and hearing the parties, the court decides to bring the person to justice or closes the case. There are several reasons for closing cases.
In 2019, the rates of closing cases by courts were very high. It was the NACP that pointed out in its reports that the percentage of closed cases is catastrophic, and that this indicates the overall low efficiency of institutions of government in ensuring the inevitability of administrative liability. According to statistics, in 2019, 52% of corruption-related cases, 82% of “party” cases, and 83% of cases for non-compliance with the NACP precept were closed. In 2020, the overall situation improved to 36%/88%/80%, respectively, but this figure still remains extremely high.
When closing a case, the court must clearly indicate the grounds for closing it, and they best emphasize the problems of the institution of bringing to administrative liability.
- Insignificance of the offense
The Code of Ukraine on Administrative Offenses allows dismissing a person against whom an administrative protocol has been drawn up on the insignificance of an offense. This institution should be applied at the discretion of the court, since the law does not clearly define the grounds for its application. This is what judges actively use and quite often recognize the committed corruption offenses as insignificant. In 2020, 538 corruption-related cases (20.9% of all closed cases), 8 “party” cases (2.7%), and 2 cases (5%) for non-compliance with the NACP precept were closed due to insignificance.
This practice of the courts hinders the effective prevention of corruption and may contribute to the commission of new offenses, since in the event of closing a case for insignificance, the negative consequences envisaged by the Law On Corruption Prevention do not apply to a person (the person is not entered in the Register of Corrupt Officials, is not subject to dismissal, etc.). Scientists believe that exempting persons from liability due to insignificance is an important corruption-causing factor.
- Expiration of statute of limitations
The Code of Ukraine on Administrative Offenses sets a clear statute of limitations for bringing a person to justice and clear time-limits during which an administrative penalty may be imposed. In case of their expiration, the court is legally obliged to close the administrative case. The percentage of closed cases due to the expiration of statute of limitations is very disappointing. Most cases are closed on this basis. Thus, in 2020, 1,113 corruption-related cases (43.2% of the total number of closed cases), 198 “party” cases (66.2%), and 31 cases (77.5%) for non-compliance with the NACP precept were closed due to the expiration of procedural time-limits.
Scientists provide the main reasons for such disappointing statistics: too short statute of limitations; incorrect binding of statute of limitations to the day of detection of an offense; wide opportunities for abuse of the procedural rights for the person in respect of whom the protocol was drawn up. In fact, the statute of limitations of bringing to administrative liability are a “gold mine” for offenders and a guarantee that they will not be brought to justice. They often abuse their rights to delay the consideration of the case. For example, they deliberately do not sign the protocol, do not appear at a court hearing, and so on.
3) Low sanctions
If the court decides that the person is guilty, it imposes a penalty. The main penalty is generally in the form of a fine. However, in addition, the court may apply an additional penalty in the form of deprivation of the right to hold certain positions or engage in certain activity, or apply confiscation of items or money. When determining a fine, the courts proceed from the minimum and maximum amount established by the Code of Ukraine on Administrative Offenses and assign a specific penalty at their discretion.
Statistics show that judges are extremely loyal to those who have committed corruption-related offenses. The amount of fines imposed is mostly minimal or slightly higher than the minimum. For example, for violating the requirements for receiving a gift, the law sets a fine from EUR 53 to 425 (in case of repeated commission). At the same time, the average fine imposed by the courts for this offense in 2020 is EUR 53 — that is, the minimum threshold (statistics are compiled on the basis of 5 decisions). In general, the average fine imposed by the courts for corruption-related offenses in 2020 amounts to EUR 32. At the same time, this figure decreases every year — EUR 39 in 2018 and EUR 35 in 2019. A similar situation with the amount of the imposed fine is observed in relation to “party” offenses and offenses for non-compliance with the decision of the NACP. It is worth noting that in the latter case, the average fine imposed by the courts in 2020 is EUR 58. Although the minimum sanction of this article is EUR 53, and the maximum is EUR 159.
4) Heterogeneous judicial practice and inequality of parties
Scientists and experts point out that one of the main problems of administrative liability is heterogeneous judicial practice. Quite often, courts have different views on the consideration of the described categories of cases. The situation is also aggravated by the lack of practice of higher judges, since the law does not provide for cassation appeal. As a result, each court interprets the provisions of the law at its discretion, which significantly reduces the effectiveness of the institution of administrative liability as a whole.
Scientists note that the situation with the practice of considering administrative cases resembles “legal federalism.” Geographically different courts in identical situations make opposite decisions. There are even situations when the practice of the same court on the same issues can be radically different. It is possible that it is precisely because of the heterogeneous judicial practice that courts often close cases for lack of evidence of an administrative offense. Thus, in 2020, 737 corruption-related cases (28.6% of the total number of closed cases), 81 “party” cases (27.1%), and 7 cases concerning non-compliance with the NACP precept (17.5%) were closed due to the lack of evidence of an administrative offense. However, a large percentage of closed cases on this basis may be the result of other problems.
For example, scientists and experts emphasize the inequality of participants in administrative cases and identify two key problems in this context.
Firstly, the presence of the person who drew up the protocol (an employee of the NACP or the NP) at the court hearing is not required. The protocol and materials are submitted to the judge by prosecutors, who, due to their employment, do not always have time to fully familiarize themselves with the case. As a result, the motives and explanations of the person who drew up the protocol and who is much more familiar with the case are not considered by the courts.
Secondly, the decision of the court of first instance can only be contested by the person in respect of whom the protocol was drawn up. Prosecutors do not have such an opportunity in this category of cases. As a result, if the decision of the court of first instance was made in favor of the person in respect of whom the protocol was drawn up, it remains in force and is not contested. In other cases, a person in respect of whom the protocol is drawn has an exceptional opportunity to contest the court's decision and change it in their favor. Scientists believe that this practice contradicts the constitutional principles of adversarial proceedings and procedural equality of participants in judicial proceedings, and neither does it contribute to the uniform application by courts of anti-corruption substantive and procedural law norms.