Article 6.
Preventive anti-corruption body or bodies

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, and materials of its meetings, evaluation results, and selected practical 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, passed the interview, and did not receive negative feedback from the public.

The report published by Transparency International Ukraine, the authors of which are from the anti-corruption expert community, also praised the competitive selection, no significant remarks concerning the competition were made. At the same time, there was an opinion that the decisions of the Competition Commission should be better described, as its final decision contained only a short justification. The comments also referred to the lengthy procedure for the appointment of the selected candidate. The competition itself was quite fast, the winner was chosen within a month; however, the government postponed his appointment for another month after the competition ended.

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 four years of work of the new head, there have been no deliberate attempts to dismiss him. However, these guarantees have been breached in the past. This 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 amendment into the Law On Prevention of Corruption. 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 do not suit the authorities.

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. The year 2023 was an exception. Due to the war, funding for anti-corruption infrastructure is planned to be reduced. Funding for the NACP in 2023 decreased by 16% compared to 2022 and amounts to approximately EUR 9.9 million. In the context of the war, this decision should be seen as rather compelled to than aimed at reducing the NACP's capacity.

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 interviewed also indicated that there were no delays in the payment of salaries. Approximately 57% of NACP’s expenditures (EUR 8 million) are paid annually to its employees. According to our information, the salary level remained stable during the ongoing Russian war against Ukraine.

There is an urgent need to establish the NACP territorial offices, which are defined by law. According to experts, they would significantly improve the work of the NACP in the regions. But, since most of the experts we interviewed from various fields indicated that the NACP needs additional staff in almost every existing structural unit, there is a high risk of establishing new offices with incomplete staff.

4) Selection of employees
The NACP employees are selected in two ways, in particular, through an open competition in a special procedure 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. Another drawback is the practice of the NACP (and other public authorities) to conclude direct temporary contracts during quarantine measures and martial law, which allowed to bypass the competitive 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 noting certain shortcomings of the competition procedure itself. The current procedure provides for optional testing of general abilities and solving the cases. The decision to include such stages of the competition is made by the competition commission in each specific situation. According to experts, testing of general abilities should be mandatory.

5) Institutional independence
The current NACP staff has not been involved in any corruption or political scandals that would give grounds to question its independence. During almost four years of operation of the “re-launched” NACP, there have been repeated attempts to negatively influence the body, and it has constantly 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. The most notorious case for encroachment on the independence of the NACP occurred in late 2020. The Constitutional Court of Ukraine declared 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 amendments to the law.

One of its main functions, as we noted above, is to review the electronic declarations of public officials. The first attempt to restore e-declarations was made by Members of Parliament in September 2022, but it was never supported by the Parliament due to the lack of interest in it. However, in September 2023, the VRU voted in favour of a new law on the restoration of electronic declaration of officials. More details about this are provided under Articles 7.4, 8.1 and 8.5.

Transparency and control over NACP performance
With regard to the transparency of the NACP's activities, it is necessary to assess how openly the agency conducts its functions and how easy it is to find information about its activities.

1) Transparency of the NACP
In general, it can be stated that the NACP is a fairly transparent body. The NACP annually publishes high-quality reports on its activities including statistical data, information on the budget and its use, etc., during the year for public free access. In 2022, 49.9% of respondents among the public and 73.2% of businesses consider themselves aware of the National Agency's activities. These statistics, among other things, are included in the NACP's annual self-assessment report. For this purpose, 237 criteria in 8 spheres are applied. For example, in 2021, the NACP assessed its effectiveness at 98%. There is a positive trend in the content and quality of its reports. For example, the NACP's 2022 report differs significantly from previous ones. It is written in clear language, without using of formal and professional jargon, and it is much easier to read due to good visualization of statistics and other information. The Public Council under the NACP published an opinion on the NACP's report, in which it noted that the text of the report is structured and contains the necessary information on the Agency's activities during the reporting period, so it can be assessed as "good" (4.4 points out of 5). However, in its recommendations, it notes the need to provide more statistical information on the areas of work of the National Agency, not forgetting to demonstrate successful cases, as well as to publish regulations, acts of individual action, draft decisions to be discussed in full.

For the most part, the NACP complies with the requirements for the provision of public information, yet there are some shortcomings as well. 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 for automatic processing. There are separate website sections for submission of a request for public information and citizen’s inquiry in electronic forms. 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 the lack of public access to some regulations and other acts.

2) Control over the activities of the NACP
Public control is a very effective way to monitor the NACP's activities. This control is conducted by the NACP’s Public Council, which includes 15 representatives of civil society and other anti-corruption organizations. The representatives were elected by open internet voting. The Public Council is active, in particular, its members participate in the competition and disciplinary commissions of the NACP, provide conclusions to draft acts of the NACP, and consider complaints and inquiries from the public. Members of the NACP Public Council actively assisted in the preparation of this report. Due to the war in Ukraine, the term of powers of the NACP's Public Council has been extended until the martial law is lifted or ended.

To monitor the NACP's effectiveness, the law provides for an independent external evaluation. The evaluation should be conducted by an independent commission formed with the involvement of international experts. The first external assessment was to be conducted in early 2022, given that this is the middle of the current NACP Head's term of office. It was planned to do so according to the methodology and criteria defined by the Cabinet of Ministers. The Commission started its work on 24 January 2022. Already in March, it suspended its activities due to Russia's full-scale invasion of Ukraine and resumed them only on 6 June 2022. In its report dated 24 July 2023, the Commission pointed to the satisfactory fulfilment of most of the tasks assigned to the NACP. In particular, the current NACP has managed to correct many of the shortcomings that led to the disbandment of the previous one. According to the results of the assessment, the NACP fulfilled 148 (72%) of the 206 criteria that were taken into account in the calculation (other criteria were not taken into account because the Commission did not receive sufficient information to draw a conclusion on them or because the NACP could not fulfil them due to external factors). However, in several aspects, the NACP failed to produce high quality results, mainly due to insufficient transparency of the Agency's work, serious errors in the approach to the development of regulations governing the work of employees, shortcomings in the organisational structure and personnel decisions, as well as in the implementation of the internal control function.