Article 6.
Preventive anti-corruption body or bodies

Article provisions:
Each State Party shall, in accordance with the fundamental principles of its legal system, ensure the existence of a body or bodies, as appropriate, that prevent corruption by such means as:

a) Implementing the policies referred to in article 5 of this Convention and, where appropriate, overseeing and coordinating the implementation of those policies;

b) Increasing and disseminating knowledge about the prevention of corruption.

Each State Party shall grant the body or bodies referred to in paragraph 1 of this article the necessary independence, in accordance with the fundamental principles of its legal system, to enable the body or bodies to carry out its or their functions effectively and free from any undue influence. The necessary material resources and specialized staff, as well as the training that such staff may require to carry out their functions, should be provided.

Each State Party shall inform the Secretary-General of the United Nations of the name and address of the authority or authorities that may assist other States Parties in developing and implementing specific measures for the prevention of corruption.
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State evaluation
Public evaluation
The preventive anti-corruption body (NAPC) has recently been "re-launched". In particular, its organizational structure and management changed. This allowed for a sufficient level of independence of the body. At the same time, the biggest problems are staff shortages and attempts to put pressure on the body by the authorities.
The transparency of the NACP and the control over its activities can also be assessed positively. Information on the activities of the body is open to the public and always remains relevant, and the public can ensure a sufficient level of control over the activities of the NACP. However, some information is unreasonably closed and internal control mechanisms are not effective enough.

In short

State of implementation
Legal framework


According to the Corruption Prevention Law, the NACP is the main body aimed at the prevention of corruption and implementation of the state anti-corruption policy. This body started operating in 2016, but in 2019–2020 the NACP was “relaunched”. In particular, the management model was changed (from collegial to individual) and several changes regarding the functioning of the body were introduced. Within this block, the “relaunched” NACP is reviewed.

The powers and rights of the NACP are enshrined by the Corruption Prevention Law. They are stated quite clearly, their analysis allows us to understand the direction of the body and its main functions/tasks.

Among the powers of the NACP are:

  • formation and implementation of anti-corruption policy;
  • prevention and settlement of conflicts of interest, control, and verification of declarations.
  • oversight of the financing of political parties;
  • protection of whistleblowers.

The powers of the NACP generally do not overlap with the powers of other bodies, but there are some exceptions, which will be described separately in the relevant sections of this research.

The Corruption Prevention Law establishes special guarantees for the independence of the NACP to effectively implement the powers granted.

Among these guarantees are:

1) Special procedure for selection of the head of the NACP

A special Competition Commission (involving international partners) is established to select the head of the NACP. It conducts testing and interviews with candidates, based on the results of which it independently selects the head. The work of the Commission is public and its meetings are streamed online.

2) Special requirements for the head of the NACP and the deputies

The Corruption Prevention Law specifies special requirements for the head of the NACP to ensure his or her professionalism (older than 35, higher education), political neutrality (the head of the NACP cannot be a person who worked/was in political parties for two years before the competition), and integrity (a person cannot be the head of the NACP if he or she has not submitted a declaration, has not gone through a special inspection, has been prosecuted for a corruption offense). It is important that the head of the NACP is elected for 4 years and cannot hold this post for two terms consecutively.

3) Special procedure for dismissal of the head of the NACP and bringing the deputies to justice

The head of the NACP can be dismissed only on clear grounds established by the Corruption Prevention Law. His or her dismissal is not otherwise allowed. Notice of suspicion may be given to the head of the NACP and his or her deputies only by the Prosecutor General or the director of the Special Anti-Corruption Prosecutor’s Office. Their removal from office is also possible only at the request of the Prosecutor General or the head of the SACPO.

4) Proper funding, facilities, and staffing

The Corruption Prevention Law provides the financing of the NACP at such a level that it ensures the proper exercise of its powers. The NACP has the right to independently use the allocated funds. In addition, the salaries of the head of the NACP, his or her deputies, and other employees are determined by law, thus it makes it impossible to unjustifiably reduce the salaries. The NACP employees are subject to compulsory state insurance and undergo regular training. Competitive selection to the NACP is open and public, it is carried out separately and requires public participation.

To prevent abuse of power by the NACP, the Corruption Prevention Law provides mechanisms for monitoring the activities of the body, the mechanisms can be divided into internal and external.

1) Internal control mechanisms

The NACP has an internal control unit subordinated to the head of the NACP. Its main powers include:

  • monitoring the compliance of the NACP employees with the Corruption Prevention Law.
  • conducting inspections of the NACP employees for integrity and monitoring their lifestyles;
  • conducting internal investigations, etc.

2) External mechanisms

External control over the activities of the NACP is exercised by several entities, for example:

  • every two years, the Accounting Chamber controls the expenditure of the state budget;
  • the specially created Public Council at the NACP exercises public control, with the Council having several powers and rights at the low level;
  • a special Commission, established by the Cabinet of Ministers of Ukraine with the involvement of international partners, evaluates the performance of the NACP.

In addition, the NACP annually reports publicly on its performance.

Implementation in practice

2.1. Independence of the NACP

The guarantees provided in the Corruption Prevention Law are sufficient to ensure the independence of the NACP. However, some guarantees of independence are not always successfully implemented in practice.

1) Special procedure for selection of the head of the NACP

After the “re-launch” of the NACP, the competitive selection of the first head of the body began. In 2019, a competition commission composed of three foreign experts and three members of the public was formed.

The competition process can be assessed very positively. It was fast, public, and open, and was not accompanied by political or corruption scandals. All meetings of the Competition Commission were streamed online, as well as materials of its meetings, evaluation results, and selected works of candidates were published. The winner of the competition was chosen based on objective indicators. In particular, he met all the necessary criteria, received high scores on the test results, passed the interview, and did not receive negative evaluations from the public.

The expert civil society also praised the competitive selection, no significant remarks concerning the competition were made. At the same time, there was an opinion on the need for a better substantiation of the decisions of the Competition Commission, as its final decision contained short justification. The remarks also concerned the lengthy procedure for the appointment of the selected candidate. The competition itself was quite fast, the winner was chosen in a month, however, the government did not appoint him to the post for almost a month.

2) Dismissal of the head of the NACP

It can be argued that at the time of writing this report, the guarantees against the arbitrary dismissal of the head of the NACP have not been violated. For almost two years of work of the new head, there were no deliberate attempts to dismiss him.

However, successful practices of breaches of these guarantees have taken place before. It has set a dangerous precedent that could be repeated in the future. In particular, the Parliament dismissed the leadership of the “previous” NACP by introducing a one-time provision into the Corruption Prevention Law. At the time of this decision, the Parliament had no authority at all to dismiss the NACP leadership, so all established guarantees of independence were violated. Such an easy way to dismiss the leadership of independent bodies is very dangerous and extremely politicized, as the often-controlled Parliament can be a tool to influence people who are uncomfortable with power. Attempts by the Parliament to replicate this practice have been made to the leadership of other anti-corruption bodies, but no avail.
Another parliamentary attempt to undermine the independence of the NACP was a draft law that provided additional grounds for the dismissal of the director of the NACBU and the head of the NACP. The Parliament, in particular, proposed to dismiss these heads in case they are brought to administrative responsibility for an administrative corruption-related offense. In practice, administrative cases are much easier to fabricate compared with criminal cases, which would result in the removal of the head of the NACP from office if the government disagrees with his or her activities. Fortunately, this and other similar draft laws were not supported by the Parliament.

3) Proper funding, facilities, and staffing

The NACP is sufficiently provided with resources and finances. This is confirmed by both the NACP representatives and the experts from civil society. Funding for the body increases every year since it started operating. For example, in 2021, approximately EUR 14 million was allocated for the NACP activities, which is 10% more compared to 2020.
Despite stable funding, the NACP needs funds to implement certain projects and powers. Most of the funds are not enough to create and maintain various registers. Experts point out that this often requires international technical assistance. For example, in 2017, the NACP received equipment worth almost EUR 30000 from donors, in 2018 office equipment worth almost EUR 2500, a website worth around EUR 19000, and declaration register software worth more than EUR 46000.

For the introduction of the register of reports of political parties POLITDATA the state did not allocate funds for its development and the NACP had to attract funds from donors.
The financing of the NACP employees’ salaries is at a fairly high level. A public survey shows that the NACP employees consider their salaries to be appropriate and express confidence in the NACP’s prospects as an employer, especially during the COVID-19 pandemic. Former NACP employees we interviewed also indicated that there were no delays in the payment of salaries. Approximately 69% of NACP’s expenditures (EUR 8 million) are paid annually to its employees.
The NACP has a large shortage of human resources and there is a need to open territorial offices. As of August 2021, 79.1% of the NACP threshold staff quantity are employed. Most of the experts we interviewed from various fields indicated that the NACP needs additional staff in almost every structural unit. The deficit is particularly noticeable in the Anti-Corruption Policy Department, which formulates, coordinates, and monitors the state’s anti-corruption policy, ensures compliance with international obligations, and analyzes indicators and causes of corruption. It employs only 13 people out of 21, foreseen by the staff list. There is also an urgent need to establish the NACP territorial offices, which are envisaged by law. According to experts, they would significantly improve the work of the NACP in regions. Without territorial offices, for example, it is quite difficult to represent whistleblowers in court, as some of them may not live in the capital, and the distance between Kyiv and some regional centers can reach 800 km. At the same time, the professionalism of the NACP employees does not cause significant concerns. Most of them have a university degree in law or economics and take regular training sessions.

3) Selection of employees

The NACP employees are selected in two ways, in particular, through an open competition in a special manner approved by the head of the NACP, and by transfer from other bodies . It should be noted that the possibility of holding positions in the NACP by transfer from other bodies should be excluded from the law. According to the experts from civil society, it does not ensure proper verification of the competence and integrity of employees with the participation of the public. A disadvantage is also the practice of the NACP (and other public authorities) to conclude direct short-term contracts during acting quarantine measures, which allowed to bypass the competition procedure.

The competition selection procedure at the NACP deserves positive reviews. Participation of the NACP Public Council members in competition commissions significantly increases the transparency and efficiency of competitive selection. It is the members of the civil society who exercise proper external control over the competitions, which brings good results. Thus, after the “re-launch”, there is no information about unfair or fictitious competitions to the NACP, and the former employees we interviewed claimed that they did not observe violations of competition procedures and did not hear about such cases.

Nevertheless, it is also worth paying attention to certain shortcomings of the competition procedure itself. First, the current procedure provides for optional testing of general abilities and solving situational tasks. The decision to include such stages of the competition is made by the competition commission in each case. According to experts, testing of general abilities should be mandatory. Secondly, in our view, the lack of transparency of the competition process is also a disadvantage. We believe that all the results of the candidates should be published, as well as the recording of interviews should be available on the official NACP website. Such a move would significantly increase the transparency of the selection process.

4) Institutional independence

If we evaluate the independence of the NACP as an institution, it should be emphasized that the “re-launched” NACP differs significantly from the NACP it was before the “re-launch”. In particular, according to the public, the previous NACP leadership was politically biased and dependent. In addition, even the NACP employees have publicly stated that NACP employees have been instructed by the Presidential Administration on the results of inspections of top officials’ declarations. That is why the body lost credibility and needed to be reformed as soon as possible. The current NACP, in turn, has not been involved in corruption or political scandals that would give rise to doubt about the body’s dependence. Although, as experts fairly point out, it is too early to judge the “re-launched” NACP on its complete independence .

During almost two years of operation of the “re-launched” NACP, there have been repeated attempts to negatively influence the body, and it has repeatedly had to defend its independence. The greatest threat to the independence of the NACP is posed by the Parliament and the courts. For example, parliamentarians have repeatedly tried to deprive the NACP of some of its powers due to “inconvenient” decisions made by the NACP. However, the most notorious case for encroachment on the independence of the NACP occurred in late 2020. The Constitutional Court of Ukraine ruled its decision No. 13/2020, dated October 27, 2020, declaring several provisions of the Corruption Prevention Law unconstitutional, thus abolishing several important anti-corruption mechanisms, and depriving the NACP of some of its powers. All those mechanisms became active again on December 30, 2020, after the adoption by the Parliament of the necessary law amendments. Consequently, the anti-corruption system in Ukraine did not fully function for 2 months, and it is impossible to bring to justice those who lied in their declarations for 2020, and law enforcement agencies had to close about 4 thousand criminal proceedings.

Those judges of the Constitutional Court of Ukraine made that decision under a conflict of interest after the NACP officials draw up administrative protocols against the judges on the grounds of their violations of the Corruption Prevention Law. Immediately after that decision, the Judge-Rapporteur sent a letter to the NACP employee. It was from the official address of the judge slidenko@ccu.gov.ua, in French wording. The translation is: “And now, - said Athos, wrapping himself in a cloak and putting on his hat, - now when I have snatched your teeth, viper, bite if you can!” Alexandre Dumas. The Three Musketeers. P.S. So merci, gentlemen, give my regards to Mr. N.”

2.2. Transparency and control over NACP performance

Concerning the transparency of the NACP, it is first necessary to assess the extent to which the body exercises its powers openly and how easy it is to find information about its activities.

1) Transparency of the NACP

In general, it can be argued that the NACP is a fairly transparent body. The results of its activities are properly published, the public has free access to the reports of the body, including finances. However, certain information that should be open is not available.

The NACP annually publishes reports on the results of its activities for the year. They are publicly available and of good quality. Annual reports contain information on the results of the NACP’s work, statistical data, information on the budget and its use, etc. The report, among other things, shows the NACP’s performance indicators based on self-assessment. For this purpose, 237 criteria in 8 spheres are applied. For example, in 2020, the NACP estimated its efficiency at 88%. The NACP report for 2020 differs from the previous reports. It is worth noting the positive trend towards its design and presentation of the material. It is written in plain language, without excessive use of formal and professional vocabulary, and also well-made visualization greatly simplifies the perception of statistical data and other information. Nevertheless, the NACP Public Council published its opinion on the NACP report, stating that the report did not meet all the requirements of the law regarding the availability of information. In particular, the NACP did not disclose information on the results of the review of the protocols drawn up by the NACP, and the conclusions made by the NACP. Experts also argue that much of the information is published in summary form, so it should be set out in more detail.

The official NACP website and social media pages deserve high assessment. The information on the official website is complete, and it is quite user-friendly. The NACP website has Ukrainian and English versions. The latter is very limited and provides only general information and current news, all other information, including the possibility of reporting corruption available only in Ukrainian. The navigation of the website is clear, all the information is divided into sections that reflect the main performance functions of the NACP. To monitor NACP activities on a separate Monitoring page is of the most convenience. There you can quickly find information and statistical data on the results of verification of declarations, protocols drawn up by NACP employees, issued prescriptions, anti-corruption programs, and others. All information is quite well visualized and regularly updated. At the same time, the public points to the lack of information on the results of the consideration of administrative protocols. In particular, according to the public, there is a lack of information about the date of sending the protocol to the court, court case numbers, etc.. According to the information announced on the NACP website, the requested website functionality is under development and will be added to the relevant section soon.

The NACP communication is also successful. The NACP Press Center publishes daily news related to the activities of the body, in particular on threats to the independence of the body. The publication is not limited to the official NACP website, such information is also partially duplicated on the body's Facebook and Telegram pages. In addition, the NACP runs an English-language Twitter.

For the most part, the NACP complies with the requirements for publication and provision of public information, but some decisions of the body in this context deserve fair criticism. The NACP publishes information about its budget on its website in special sections, including budget requests and budget program passports (detailed information on expenditures by individual categories). Information on public procurement of the body is also published. All information is available in open data format, which allows it to read and process automatically. There are separate website sections for submission of a request for public information and citizen’s inquiry in electronic forms. These sections also provide statistical data on the responses to inquiries and the results of consideration of citizens’ inquiries. From them, it can be concluded that the vast majority of requests and inquiries are respondedto. Nevertheless, the public is concerned about certain cases of unjustified refusal to provide information or delay in responding. Civil society is also critical of the non-disclosure by the NACP of its draft acts before their approval, as well as of the lack of certain rules of procedure and other acts in public access.

2) Control over the activities of the NACP

The NACP is monitored through several mechanisms set forth by the Corruption Prevention Law. They can be assessed as sufficient to eliminate the possibility of abuse of power by the NACP. At the same time, there are some concerns about the functioning of the mechanisms.

Civil society oversight is a very effective way to control NACP activities. It is held by the NACP Public Council, which was formed in June 2020. It includes 15 representatives of civil society and other anti-corruption organizations. The representatives were elected by open internet voting. During the formation of the current Public Council, neither the NACP, civil society organizations nor mobile operators revealed any interference or other violations. In this context, the process of forming the previous Public Council can be assessed as significantly improved if compared with the formation of the previous council. The activity of the Public Council is quite active, in particular, its members participate in the competition and disciplinary commissions of the NACP, provide conclusions to draft acts of the NACP, consider complaints and inquiries from the public, others. In addition, the Public Council actively expresses its position on pressing issues in the anti-corruption sphere. Members of the NACP Public Council actively assisted in the preparation of this report.

To ensure the integrity of NACP employees and to comply with the Corruption Prevention Law, the NACP internal control unit has been established within the NACP staff. Its efficiency indicators are contradictory and rather low. In response to our request, the NACP responded that in 2020, no official investigations/disciplinary proceedings were conducted against NACP employees, although the NACP official report for 2020 states that 2 internal investigations were conducted and 2 disciplinary sanctions were applied against the NACP employee in the form of a reprimand. In 2020, the Internal Control Unit conducted only 5 measures to monitor and control the compliance of NACP employees with the Corruption Prevention Law, and in 2021, 9 inspections of NACP employees for integrity and 13 monitoring of their lifestyle were commenced. The low efficiency of the internal control unit maybe because it also performs other functions not provided by the Corruption Prevention Law. In particular, the NACP’s practice of checking the declarations of certain categories of persons by the NACP’s internal control unit is widely criticized by the public. The public also expresses concerns about the structure of the unit, as it was merged with the anti-corruption unit (that assesses corruption risks in the NACP) into one division, that, in their opinion, contradicts the logic of the law, as it separates the control and preventive functions of these two units.

To monitor the effectiveness of the NACP the law envisages an independent external evaluation. It should be conducted by an independent commission formed with the involvement of international partners. The first external evaluation will be conducted in 2022 according to the methodology and criteria defined by the Cabinet of Ministers. The civil society does not express any concerns about this methodology but argues that to reduce the CMU’s influence on the NACP, the methodology should have been developed by the commission itself with a broad civil society involvement.

Practices

positive

negative

The selection of the head of the NACP was carried out transparently and publicly. The competition was not accompanied by corruption or political scandals. The winner was selected based on objective criteria.
The selection of the NACP employees through competition is carried out at a high level. Civil society involvement in competition commissions ensures a sufficient level of control over their conduct.
The “Re-launched” body demonstrates much more independence than the previous body. There seems no room for partiality and politicization of the “re-launched” NACP.
Control over the activities of the NACP is carried out at the appropriate level. The Public Council at the NACP effectively performs the function of civil society control.
The financial support of the NACP is sufficient for the exercise of its powers. Salaries of NACP employees are at a high level.
The NACP operates transparently and openly. The reports of the NACP and its official website contain comprehensive information on its activities. The information is constantly updated.
The former NACP leadership was dismissed in a manner not provided by law and in violation of the guarantees of their independence. There were attempts to narrow acting guarantees for the NACP’s independence by making amendments to the law.
To finance large projects (such as registries) there is a need to attract donor support.
There is a shortage of staff in the NACP, there is an urgent need to establish territorial offices of the body.
The appointment of the NACP employees by transfer from other bodies allows bypassing the competitive selection procedure, which does not provide sufficient control over the integrity of candidates. Competitive selection does not require testing of candidates’ general abilities as an obligatory requirement.
There were attempts to interfere in the independence of the NACP. The most serious threat to the body is posed by the Parliament and the courts. The decision of Constitutional Court No. 13/2020, dated 27 October 2020, significantly affected the efficiency and independence of the NACP.
The NACP is reluctant to publish drafts of its acts for public discussion before their approval. Certain acting acts of the body are not accessible.
The NACP internal control unit does not demonstrate proper efficiency. Its powers go beyond the law, and the organizational structure is not capable.
Actual research and materials
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State evaluation will be published soon

In short

State of implementation
Legal framework

Legal framework after State evaluation.
Implementation in practice
Implementation in practice after State evaluation.

Practices

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negative

Example of positive practice
Example of positive practice
Example of positive practice
Example of negative practice
Example of negative practice
Example of negative practice
Actual research and materials
1. "Document name"
2. "Document name"
3. "Document name"
4. "Document name"
5. "Document name"
Positive
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Neutral
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