How the NAPC together with the Cabinet of Ministers propose to “improve” anti-corruption legislation

People's deputies must improve the mechanisms of anti-corruption examination that bills undergo in the Verkhovna Rada. The National Agency for the Prevention of Corruption (NACP) is asking them to do this, which is accompanying the government’s initiative to amend the Law “On the Prevention of Corruption” (draft law on amendments No. 9457). NAPC head Alexander Novikov sent a letter to legislators a few days before he left office.

Both Ukrainians and Western partners realized how important high-quality anti-corruption expertise is when they discussed the scandalous urban planning “reform” (No. 5655) and the initiative to build sea ports on the banks of rivers (No. 9664) by the head of the Servant of the People party, Elena Shulyak.

Unfortunately, the proposals contained in the bill do not eliminate, but add new corruption risks during the anti-corruption examination of the NACP.

Why can't we fight corruption?

You can create the ideal National Anti-Corruption Bureau, the Special Anti-Corruption Prosecutor's Office and the High Anti-Corruption Court, but this will not help if corruption rules exist at the legal level.

It is the anti-corruption examination (hereinafter referred to as the examination) that should ensure that new risks cannot arise in laws, as well as identify and eliminate existing risks. Without this, it is useless to hope for transparency in government processes, in particular the future recovery.

The Law “On the Prevention of Corruption” was changed about 70 times in ten years. But the key article 55 remains unchanged.

For example, “mandatory anti-corruption examination is carried out by the Ministry of Justice of Ukraine, in addition to the anti-corruption examination of draft legal acts submitted to the Verkhovna Rada of Ukraine by people’s deputies of Ukraine, which is carried out by the committee of the Verkhovna Rada of Ukraine, the subject of which is the issue of combating corruption.”

According to this article, does the Verkhovna Rada Committee on Anti-Corruption Policy necessarily carry out an examination of the legislative initiatives of people's deputies or not? According to the rules of the Ukrainian language, with this wording it is mandatory. But in reality everything is at the discretion of the committee. This is the first legal uncertainty, and this is a corruption risk.

What does the relevant committee check? Projects “submitted for consideration” by people’s deputies. Are these initial editions? Or are these bills at any stage, including those changed beyond recognition for the second reading, because the bill still remains “introduced for consideration” by people’s deputies? Again legal uncertainty.

According to the Rules of the Verkhovna Rada, the relevant committee does not have the authority to check projects after changes to the second reading. But parliament has not changed the Rules in this regard since the time of the state traitor Yanukovych. And although a new law has appeared, maintaining this corruption risk at the level of the Regulations is very important for someone.

The rule that the NACP has the right to carry out anti-correction examination of “draft normative legal acts submitted for consideration” (Part 5 of Article 55) allows for three interpretations.

Thus, the anti-corruption committee must conduct an examination of projects “submitted for consideration”, and the NAPC - “introduced”. For fiction this is not so important, but in law this is a fundamental difference in legal concepts. Can NACP check projects that are just being submitted for consideration and have not moved into the category of already submitted? Or should “introduced” and “introduced” be treated more broadly as synonyms?

Well, the same uncertainty as with the anti-corruption committee - only the initial revisions that are introduced, or at any stage of consideration and revision? By the way, the NAPC interprets this in exactly the opposite way than the Verkhovna Rada. It stated in its methodology (clause 2 of section II) that it can check everything in any edition.

How does the NACP determine that an examination is needed? The law says: “may carry out on its own initiative in the manner prescribed by it.” And there is no clarification of when the NACP is obliged to conduct an examination. This is called “excessive and unreasonable discretionary powers” ​​- a typical corruption factor.

How many times can the NACP carry out an examination of the project during its consideration in the Verkhovna Rada, given that the legislative initiative can change dramatically, and amendments can be made to it due to corruption risks? The law does not provide an answer here.

The national agency refused to allow the National Union of Architects of Ukraine to conduct an examination of the urban planning “reform” (No. 5655) for the second reading. Their arguments: the first edition has already been checked, but the law does not provide for a second examination. But this contradicted the already mentioned NACP Methodology, which provides for the possibility of re-examination. However, the Methodology is not a law, and there is no liability for its violation.

All this leads to the emergence of corruption: the authority can freely change its position in the interests of individuals without any risk of liability. He technically does not break the law.

The results of the examination, including public examination, are subject to mandatory consideration by the subject of issuing the relevant act (Part 8 of Article 55 of the Law on the Prevention of Corruption).

How exactly should they be considered and within what time frame? There is not a word about this in the law. It is not even stipulated that the relevant authorities themselves should establish the procedure for such consideration.

For example, what should the Verkhovna Rada do with the results of the examination of one of the projects if the Parliamentary Rules of Procedure do not take into account the existence of such documents at all? And this is a very significant corruption risk, allowing authorities to act at their own discretion and ignore the conclusions of examinations.

By the way, the law does not even provide for the mandatory publication of the results of the examination of draft resolutions of the Cabinet of Ministers, and they can be hidden from the public - all at the discretion of the body that conducted the examination. For existing regulatory legal acts, such publication is provided for (Part 6 of Article 55 of the Law).

Regulatory regulation of the examination, the purpose of which is to identify and eliminate corruption factors in laws, is a set of corruption factors.

The situation is absurd.

What are the chances of changing this?

The situation would have to be corrected in accordance with the Anti-Corruption Strategy for 2021-2025, in which among the expected strategic results the following is noted: “collisions, gaps and other corruption-inducing factors that lead to ambiguous interpretation, violation of the principle of legal certainty and systemic corruption risks in the areas of corruption prevention and priority areas defined by section 3 of this Anti-Corruption Strategy" (subclause 2.1.3).

The same goal is in the State Anti-Corruption Program developed by NACP and approved by the government (subclause 1.1.3.3).

But the practical achievement of such a goal as a result of the implementation of the State Anti-Corruption Program is impossible. All certain measures relate exclusively to the elimination of corruption risks in “priority areas defined by Section 3 of the Anti-Corruption Strategy”, and the State Anti-Corruption Strategy... does not provide for measures to eliminate corruption risks in the anti-corruption legislation.

What did the NAPC initially propose to change?

The draft prepared by the National Agency for the Prevention of Corruption (No. 9457), which was submitted by the government, does not provide for the elimination of the above existing risks. The main proposed change is a simple transfer of authority to conduct mandatory examinations from the Ministry of Justice to the NACP, as provided for by the State Anti-Corruption Program.

At the same time, the NAPC proposes to reduce its current powers by depriving itself of the right to conduct examinations when considering and finalizing government or presidential initiatives in parliament and leaving only the right to check the projects of people’s deputies (changes in part 5 of Article 55 of the Law of Ukraine “On the Prevention of Corruption”).

Here is an interesting “anti-corruption” initiative: when preparing them for the second reading, drafts can include any corruption risks through amendments, and the specialized anti-corruption body itself proposes to prohibit it from interfering in the situation.

Also, a big question is the ability of NAPC to carry out work, the volume of which should increase tenfold.

However, acting NAPC Chairman Artem Sytnik is convinced that additional budget funding will not be needed. But then the question of selectivity and quality of inspections will arise.

What does NAPC now offer?

The head of NAPC Alexander Novikov sent his proposals to the committee in January 2024, five days before he left his post.

He proposes to present Article 55 of the Law of Ukraine “On the Prevention of Corruption,” which has not been changed for so many years, in a completely new wording.

NAPC proposes to leave corruption risks when considering the conclusions of the public examination and when the National Agency conducts an examination of projects under consideration by parliament.

The Verkhovna Rada Anti-Corruption Committee may be lucky. If now it can be forced to carry out an obligatory examination of all projects of people’s deputies, now the NAPC proposes... to make this optional.

The NAPC, as provided for by the State Anti-Corruption Program, should receive the authority of the Ministry of Justice to conduct mandatory anti-corruption examinations of government and presidential legislative initiatives.

However, according to the proposals of the NAPC, the now mandatory examination ceases to be mandatory. It will be mandatory only “if, based on the results of monitoring such a draft act, it is established that it contains a corruption factor.” And this directly contradicts the State Anti-Corruption Program (Appendix 2, subparagraph 1.1.3.2.1), which provides for the responsibility of the NACP to conduct an examination of all acts submitted for consideration by the Cabinet of Ministers.

The NAPC does not propose to establish at the legal level the meaning and content of “monitoring”. That is, we have an expansion of discretionary powers (a corruption-causing factor, according to the National Agency’s classification) - NAPC will be able to manually decide whether to conduct an examination of acts. The risks here are huge.

If the relevant body has now carried out a mandatory examination, but in the interests of individuals “did not notice” corruption risks, then the direct executors and the management approving the results of the examination can be held accountable. Among other things, the Public Council attached to it is involved in conducting an examination of the NAPC, which provides additional control over the activities of officials.

The monitoring proposed by the National Agency is not an examination, during which the project must be analyzed in detail and all the risks present in it must be identified. It will be impossible to prove violations of officials who “did not notice” corruption norms during monitoring. Therefore, it is easy to construct a convenient corruption scheme for the work of the anti-corruption body to drain examinations: they can simply not be carried out, citing the results of monitoring. And the Public Council can no longer control the process, because its involvement in monitoring is not provided.

According to the proposals of the NAPC, the conclusion of the examination of draft regulatory legal acts considered by the government is subject to mandatory review by the chief developer, who is obliged to eliminate the identified corruption factors. It sounds great, if not for the continuation: if corruption factors are not eliminated, then this body must inform the NACP about the reasons, and what to do next is decided by the Cabinet of Ministers. Such an optional obligation.

It is proposed that an imperative norm prohibit the government from considering and accepting projects that were not sent for verification to the National Agency. It’s a good innovation, but at the same time the NACP gets the right, based on the results of monitoring, to decide whether to conduct an examination. In terms of the fight against corruption, what difference does it make why the examination was not carried out - because the government did not send documents to the NACP or because it was agreed with the Agency that corruption risks would not be “seen”?

The examination of current laws, resolutions of the Cabinet of Ministers and acts of the president, which must be carried out by the Ministry of Justice, is provided for by the law on the prevention of corruption (Article 55). These powers are planned to be transferred to the NAPC and expanded to all existing regulations.

However, how will the National Agency be able to efficiently carry out such volumes of work if the normative legal acts issued by ministries, other government bodies and local self-government bodies are tens, if not hundreds of times more than the laws and regulations of the Cabinet of Ministers?

There will be no effective work with the available resources. Maybe that’s why the NAPC proposes to expand discretionary powers by removing the current legal requirements to carry out such an examination in accordance with the annual plan?

The proposal that the subject of adoption of normative legal acts is obliged to take measures within three months to eliminate the identified corruption factors looks positive. But doesn’t this give the NAPC too large and unbalanced rights?

The national agency will be able, at its own request, without a court decision, to give binding instructions to the President of Ukraine, parliament, government and other authorities. In democratic countries there are courts for this. And what’s interesting is that the NAPC did not provide for the obligation to go to court with an administrative claim.

Finally, mandatory publication of the findings of the examination of not only existing regulations, but also projects is planned. But there is a nuance: this applies only to the NAPC, and not to the Ministry of Justice and the Anti-Corruption Committee.

It is also proposed that the NAPC, the Ministry of Justice and the Anti-Corruption Committee will work according to a single methodology for conducting an examination, which will be approved by the NAPC after agreement with the other two bodies. This is good, but we must take into account that anything can be entered there, because the law does not even stipulate the basic requirements for the future methodology.

Thus, the NAPC does not propose to eliminate existing risks and calls on parliament to add new ones.

The former head of the National Agency Novikov, when leaving his post, expressed hope that “one of the NAPC employees” would become the new head. That is, Novikov’s former subordinate.

Proposals for the law sent to parliament should turn the NAPC into a monopolist in conducting examinations, while simultaneously expanding discretionary powers. The national agency should receive a huge number of new rights without any obligation to use them.

In simple words, the main anti-corruption body can turn into a “candle factory.” And in manual mode it will work for political orders when it comes to anti-corruption risks.

And without high-quality expertise, it is useless to hope for real success in the fight against corruption in Ukraine.