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 firstname.lastname@example.org
, 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.