When the media or politicians talked about the fight against corruption in recent months, they mostly talked about corruption investigations or cases in the courts. And this is not surprising: in the maelstrom of war, the demand of Ukrainians for fair punishment has grown significantly - both when it comes to state traitors or gunners, and when it comes to bribe-takers.
However, the issue of anti-corruption is much broader and covers much more things that can ensure real success in such a fight. And here not only results are important, but also the ability to achieve them in general, because without ability there can be no talk of effectiveness. It is in order to understand the capabilities of the anti-corruption ecosystem that Transparency International Ukraine conducted a second study of the management and interaction of anti-corruption infrastructure bodies, which covers almost three years of their activity (2021-2023). So how do the capabilities of anti-corruption agencies match the results?
As we have already mentioned, people mainly notice the effectiveness of the fight against corruption based on information about suspicions and convictions, that is, we are talking about the area covered by the NABU-SAP-VAX link. And here it is important to understand that the ability of one of these organs directly affects the capabilities of others. And, as a result, errors or obstacles at the stages of investigation or trial cause fewer quality decisions in corruption cases.
High NABU rates
The National Anti-Corruption Bureau of Ukraine (NABU) is undoubtedly the most famous anti-corruption body in our country. It is noteworthy that it was the Bureau that showed the greatest growth in our assessment: compared to 2020 data, the authority’s ability indicators increased from 3.6 to 4.3 points out of a possible five. And this is already quite a high assessment.
This score was primarily influenced by the absence of noticeable problems with management. And even despite the outbreak of a full-scale war and the suspension of the commission’s work for more than six months, the competition to select a new NABU director did take place. It lasted less than a year, which, although long, compared to the competition of the Specialized Anti-Corruption Prosecutor's Office (SAP), for example, it was great progress. Therefore, after the appointment of Semyon Krivonos as head of the Bureau in March 2023, NABU and SAPO strengthened cooperation and noticeably intensified the investigation of corruption cases at the highest level. Although a number of experts objectively note that we will see the real results of the new director’s work at least a year after his appointment. Because all the successes of the spring of 2023, including the top case of the head of the Supreme Court Knyazev, are the achievements of detectives and the former leadership of the Bureau. But they really were not leveled out by the new.
This was possible, among other things, thanks to the improvement of legislation on the activities of NABU. In particular, thanks to the elimination of the contradiction between the Constitution and the Law “On the National Anti-Corruption Bureau of Ukraine” and the determination that NABU is a central executive body with a special status. The procedure for auditing the effectiveness of the National Bureau was clarified. Changes were also made that clearly defined the powers of the Cabinet of Ministers to appoint and dismiss the director of the National Anti-Corruption Bureau. Although, again, during the competitive selection process a number of problematic issues arose, as a result of which the public’s favorites – professionals from NABU itself – were eliminated. But one way or another, the competition procedure itself can be considered successful.
Now we are seeing a significant revival in the investigation of top corruption cases by NABU and SAPO. But such an increase also has its price, including in terms of the number of workers involved in such processes. In order to cope with the growing burden on the bodies of the anti-corruption ecosystem, it is necessary to proportionally increase the number of NABU employees, SAPO prosecutors, judges of the High Anti-Corruption Court (HACC) and court staff. Because the effectiveness of the entire NABU-SAP-VACS link depends on the ability of each of these institutions.
Moreover, in its report on Ukraine as a candidate country, the European Commission specifically pointed out the need to increase the number of NABU employees, in particular additional personnel to work on investigations - and these are detectives, analysts and technical workers.
Now, according to the relevant law, the total number of employees of the central and territorial departments of NABU should not exceed 700 people. Two bills have already been registered in Parliament to increase the number of Bureau employees - both propose to increase it to 1000 people, which will strengthen the function of pre-trial investigation. Today, in the first reading, the Rada voted on bill No. 10203-1, according to which the staff of NABU should increase from 700 to 1000 workers in three waves: 100 vacancies will be filled in 2024, 2025 and 2026. And this is the right decision, because recruiting as many as 300 qualified specialists in a year, and then integrating new personnel into the work of the Bureau is quite a serious challenge. It is also worth understanding that to complete the picture, you need to have the full text of the bill that was voted on, while it is not in the public domain.
Another important and, sadly, long-standing problem is ensuring the right of NABU to autonomous eavesdropping. The necessary legislation was adopted in the fall of 2019, but the norms prescribed in it have still not been implemented in practice. Now the SBU has the necessary equipment, and NABU can receive it upon request. But since the Bureau is a separate government agency and must carry out its work independently and impartially, it needs its own tools to ensure such functions.
Equally important for effective anti-corruption investigations is the creation of an independent body that will be responsible for conducting high-level examinations of corruption cases. This could have a positive impact on the speed and quality of NABU investigations, ensuring that examinations are carried out efficiently, independently, in a timely manner and, most importantly, without pressure. And today, Bureau employees are often unable to quickly conduct an examination, because a queue of cases has already lined up for it, and this significantly delays the investigation.
The infamous “Lozovoy amendments” also create significant obstacles. The consequences of their use can already be seen in decisions to close criminal proceedings in a number of cases due, in the opinion of judges, to the wrong subject in extending the pre-trial investigation. Among the high-profile cases that were closed thanks to Lozovoy’s “amendments” are the cases of Ukrzaliznytsia, the Dubnevich brothers, Oschadbank, the first episode of the Rotterdam+ case, and the Alperin case.
Therefore, in order to correct this shortcoming, parliament needs to improve substantive and procedural criminal legislation.
What’s nice is that NABU shows itself as a stable, effective and independent organization, demonstrates growth and regular implementation of best practices in its work, which affects the results of the entire anti-corruption system. And in many ways this would have been impossible without effective interaction with SAP.
SAP with the prospect of independence
At the same time, the Specialized Anti-Corruption Prosecutor's Office, as a result of our research, received a low 3.5 points out of a possible five, and there are reasons for this.
Since August 2020, SAPO has not had a full-fledged leader for almost two years. The situation at that time was absurd: as of June 2022, the winner of the corresponding competition had been known for six months already, but had not been appointed by the commission.
It is important to recall here that although SAPO prosecutors have additional institutional guarantees of independence from interference in their work compared to other units of the prosecutor’s office, an important nuance still remains. In the absence of a full-fledged leader, all actions of the acting one had to be coordinated by the prosecutor general (at that time Irina Venediktova), and this could and did create opportunities for interference in the course of anti-corruption investigations. Let us remind you that this is how they managed to “kill” the case against Oleg Tatarov. And, of course, this already indicates a decrease in the ability of the SAPS to perform the functions assigned to it.
And although in June 2022, Alexander Klimenko did head the Specialized Anti-Corruption Prosecutor’s Office, a number of problems of the department did not disappear. In particular, we are talking about the lack of real independence and its own legal entity.
Therefore, the body still does not have its own office or secret division. That is, it is not yet possible to write directly to SAPO - all correspondence goes through the Office of the Prosecutor General, which again creates the danger of leaking sensitive data. This also increases the risk of a banal human error, when some letter simply does not reach the final recipient. Again, due to the lack of its own legal entity, SAP does not have its own website for disseminating information and cannot create and implement a communication strategy.
Some restrictions also apply to the capabilities of the head of the SAPO, which affects its work and may give the impression that the anti-corruption prosecutor’s office is an insufficiently effective body.
For example, now Alexander Klimenko cannot independently send requests for the extradition of persons, and in NABU-SAP cases, many of the defendants are hiding abroad. Such requests can only be sent through the Prosecutor General, and this primarily affects the reputation of the Specialized Anti-Corruption Prosecutor's Office. The head of the SAPO also cannot independently register proceedings against a people’s deputy in the Unified Register of Pre-trial Investigations (URDR).
It is interesting that the relevant legislation on SAP, unlike other bodies of the anti-corruption ecosystem, has hardly changed in eight years and sometimes has lost the ability to adequately respond to the challenges that have arisen before the institution during its activities.
The problems we have mentioned also concern the European Commission. In her report, she also indicated that SAPO needs additional protection from possible unlawful interference. This risk can be addressed, in particular, by improving the selection procedures for the head of the SAPO and its key officials, as well as increasing the organizational and procedural autonomy of the SAPO and improving the accountability system.
It is worth noting that today, November 21, the parliament supported in the first reading government bill No. 10060 “On amendments to the Criminal Procedure Code of Ukraine and other legislative acts of Ukraine regarding strengthening the independence of the Specialized Anti-Corruption Prosecutor's Office.” This bill should solve the problem of the lack of a separate legal entity in the SAPS and improve the competition for the position of head of the prosecutor's office. It also provides for the creation of a separate disciplinary commission for SAP and an external independent audit of the body. Although the bill contains a number of shortcomings, for example, the lack of authority for the head of the SAPO to initiate criminal proceedings against people’s deputies, or to independently send requests for extradition, in general it lays the basic foundations for the independence of the SAPO and complies with the requirements of the European Commission on this issue. This bill also requires more in-depth analysis once the full text of the document is made public.
Another cornerstone is the lack of external audit of the effectiveness of SAP, which, for example, is provided for NAPC and NABU. That is why TI Ukraine emphasized the need to introduce such a form of assessment in order to understand strengths, weaknesses and growth areas.
At the same time, we can already talk about the formation of quite high-quality interaction in cooperation between NABU and SAP. Interestingly, the results of this interaction may just give Ukrainians the impression that the level of corruption in the country has increased significantly compared to previous years. And all because somewhere since the fall of last year we have witnessed a significantly larger number of announced suspicions of corruption, and, accordingly, the number of news headlines about this has also increased, which can create to a certain extent a false impression about the growth of corruption itself, and not investigations into it.
However, in order for headlines in the media to make a more pleasant impression, verdicts are necessary, and this is already a task for the High Anti-Corruption Court.
VAKS is at the peak of trust, but there are nuances
The Supreme Anti-Corruption Court received the highest score in our study - 4.6 points out of five possible. There are several reasons for such success.
First of all, it is worth recalling that VAKS is the newest institution in the criminal justice system, therefore, even in our first study, its scores were the highest. However, it is one thing to receive a high rating due to a short period of work, and another thing to maintain such a reputation and even improve it. Anticorruption Court succeeded.
VAKS and its stakeholders cope successfully with most of the challenges facing the institution. Judges and court staff comply with legislation on preventing corruption, regularly communicate about the results of cases, and in general, when it comes to this court, one gets the impression of a truly politically impartial and independent institution. Gray spots in the work of the institution arose, except when it came to problems with classifying individual verdicts, as well as with financing. But now they do not have a critical impact on the overall trust in the institution.
Let us recall here that in our study we did not evaluate the effectiveness of the implementation of the actual substantive and procedural criminal legislation, on the basis of which the HACS functions. But the problems inherent in all courts regarding the inconsistent practice of applying certain provisions of the law, as well as the duration of judicial consideration of individual cases, also concern the Supreme Anti-corruption Court.
Another issue is the workload on HACC judges. After all, although there are fewer cases before it, the number of judges is also small, and all cases are heard collegiately, that is, three judges take part in court proceedings. That is why the European Commission, in its report, as we previously did in our recommendations for the study, pointed out the need to increase the number of judges of the Higher Judicial Certification Commission in order to cope with the workload, which will only grow.
Another issue is the lack of premises for the HACC Appeals Chamber, taking into account the increase in staff, as well as adequate funding for the current needs of the court and competitive salaries and judicial remuneration.
At the same time, it must be said that literally shortly before the publication of the study, separate complaints appeared in the media against the decisions of some judges of the Supreme Court. And also to the increasing practice of classifying decisions. Among the most high-profile such practices, where HACS classified decisions, one can name the verdicts of the ex-Minister of Ecology Zlochevsky in the case of a super bribe, the ex-head of the Accounts Chamber Patskan, and the lawyer Goretsky in the case of a bribe Knyazev. And these are, to a certain extent, negative signals that should be taken into account. However, at the same time, it should be understood that the number of such classified verdicts is small: among 150, only 12 are classified.
Unlearned lessons from NAPC
The most ambitious task among all the bodies of the anti-corruption ecosystem was faced by the National Agency for the Prevention of Corruption, which should form anti-corruption policy in Ukraine as a whole. And in this area, unfortunately, different things have happened over the past three years.
We rated the ability of NAPC at 3.7 points out of five. And this despite the fact that the National Agency became the only body that we evaluated not twice, but three times. In general, one can speak most about the ability of the NACP also because it is the only anti-corruption body that has passed an external independent audit.
Created in 2015, NAPC began its official work in 2016. Previously, the body had a collegial leadership, however, due to corruption scandals and lack of efficiency, the Agency was rebooted in 2020, and it was headed by a sole leader, Alexander Novikov. After the reboot, NAPC had to build its work almost from scratch.
In addition, the body has repeatedly faced attempts to undermine its institutional viability. It is the NACP that is the body of the anti-corruption ecosystem that has suffered the most over the past three years after the reset, in particular regarding the destruction of its mandate and the slowdown of processes by external players.
The most scandalous such attempt was the decision of the Constitutional Court of October 27, 2020, which effectively abolished almost all of the powers of the National Agency. Fortunately, the Rada restored its functions within two months, and since then the institution has not experienced such complex impacts.
A similar challenge for the National Agency was the restrictions that were introduced at the beginning of the war. People's deputies prohibited the NACP from checking the declarations of officials and conducting special inspections, and also turned the obligation to declare into a voluntary action. Just as with the beginning of the COVID-19 pandemic, the obligation of political parties to submit their financial reports to the Agency for verification was suspended. Actually, among all the anti-corruption agencies, such “military” restrictions affected the NAPC the most.
We also need to remember the protracted process on the part of parliament and the government of adopting the State Anti-Corruption Strategy and Program, which is important for our country, in 2020-2023. Thus, the people’s deputies adopted the anti-corruption strategy in a weakened version and only 4.5 years after the previous one was completed. And the State Anti-Corruption Program was approved with a delay of two months after the legislative deadline - under calls from the public and the NAPC itself.
And here it is worth remembering the Agency’s painstaking work on the preparation of state anti-corruption strategies and anti-corruption programs. The NAPC involved all interested parties, including the public, in the development and broad discussion of these documents, and such an open process undoubtedly had a positive impact on the final result.
We can admit that the NAPC reboot has taken place. We no longer hear about new corruption scandals in the Agency and have made tangible progress in the issue of forming a state anti-corruption policy - the previous collegial NAPC completely failed to develop a new anti-corruption strategy in 2018-2019.
However, unfortunately, the current NAPC does not always use the principle of transparency, as domestic and international experts have been talking about for several years. Moreover, this became one of the main criticisms of the Agency in the report based on the results of its first independent audit.
In particular, the auditors pointed out that, contrary to the provisions of the Law of Ukraine “On Access to Public Information,” the NAPC does not publish in full its own regulations, acts of individual action and draft decisions subject to discussion. The rules for logical and arithmetic control of e-declarations were also not made public (despite numerous calls from the public for their publication and improvement) and a number of other documents, for example, rules for checking the declarations of individual employees of the SBU, NABU, etc. Note that the European Commission in its report also emphasized that shortcomings in the rules for automated control of e-declarations still exist, and the NACP should consider them in the medium term. International partners expect this from us.
No less a problem is the regulation and application of the NACP for lifestyle monitoring (LSM) of declarants. The public has also been widely criticizing this tool for several years now. Thus, TI Ukraine published a study back in 2021 with recommendations for eliminating the shortcomings of the ICW.
It should be mentioned here that, also due to shortcomings in the Agency’s approaches to implementing its mandate, external auditors in 2023 could not recognize the work of the NACP as effective, but they “did not recognize it as ineffective.” Despite the fact that the results of the National Agency’s audit did not become the basis for a change in its leadership, the auditors did not recognize that the criterion relating specifically to Alexander Novikov had been met. It is interesting that the head of the NAPC himself, commenting on the results of the audit, thanked the Commission for “those recommendations that will help us strengthen our role in preventing and combating our biggest internal enemy - corruption,” that is, he actually indicated that he would only pay attention to to some of the auditors' comments, but not to all.
Therefore, an assessment of the work of the National Agency for the Prevention of Corruption indicates that most of the problems described by the public and international experts that do not allow it to reach another level of solvency and efficiency are consistent policies and approaches of the leadership. And this is precisely the case when solving problems primarily depends on initiative from within the institution.
And, of course, from the adequate reaction of the civil sector and experts to the publication of the report of the international audit of the NACP. In essence, we were given a real tool for measuring the effectiveness of the key anti-corruption body, for which we ourselves fought. However, when the results were made public, the public remained largely silent. And this is a minus, because whoever heads NAPC after may not receive the right signal.
The competition for the new head of NAPC began on November 10, and Alexander Novikov’s term of office expires in mid-January 2024. One can only hope that the newly elected leader will finally break the “vicious circle” and be able to correct the already well-known shortcomings of the NAPC.
Ineffective ARMA
The fifth element of the anti-corruption ecosystem is ARMA. It is perhaps the least popular organ, but certainly not the least important.
In our study, we rated the Asset Tracing and Management Agency at 3.4 points out of a possible five. And this is the worst indicator among other bodies in the anti-corruption ecosystem. Why did this happen?
ARMA was created in 2016 to search for “criminal” assets and recover them for the state, and the Agency also manages seized property. It should be recalled here that the creation of ARMA is one of the conditions for visa-free travel, so a lot of attention has been paid to its work over the years.
And not without reason. The Agency is constantly criticized by both state and non-state and foreign figures, and the European Commission mentioned the Agency eight times in its report.
There are several reasons. The first and perhaps the most noticeable is this: now, even despite the seven-year existence of ARMA, the legislative framework for its activities, as well as the practice of its implementation, remain not the best. And no matter how much the public, including TI Ukraine, calls on the parliament, some urgently needed changes have not yet been adopted.
The Agency also lacks an independent and professional head who can overcome the “legacy” of previous leaders and establish fruitful communication with stakeholders. During the entire period of our research, ARMA remained without a full-fledged leader and, accordingly, was dependent on how satisfied the OP was with the work of the head of the Agency.
And, unfortunately, even after Elena Duma was appointed head of ARMA, some of these problems remain relevant. In fact, the European Commission in its report also mentioned public concerns regarding the selection and appointment process, as well as the integrity of the new head of ARMA. In just over four months of work, Elena Duma has already become the subject of journalistic publications, and they separately talked about the ambiguous personnel policy of the new head.
That is why we remind you of the need for Parliament to adopt changes to the relevant law on ARMA, and for the Cabinet of Ministers to adopt by-laws that will guide the Agency in its activities. As of now, certain acts have already been adopted, in particular, on the sale of seized property, as well as on the procedure for selecting asset managers.
Little progress has been made in improving the work of ARMA over the past three years. Of course, many of these successes were invisible against the backdrop of the Agency’s heavy load of assets with Russian or Belarusian traces, which arose after the start of the full-scale invasion and deepened existing and highlighted new problems in the work of the body. Despite the urgent demand for the search and confiscation of such criminal assets, so far we have virtually no examples of the successful return of this property to Ukraine. For its part, the European Commission also noted that the instruments of confiscation and return of assets are not used enough in Ukraine, and therefore relevant experience still needs to be acquired.
All this requires an integrated approach to assessing the work of ARMA, as well as improving legislative support and improving the practice of the body. Moreover, reforming the Agency should be approached in a balanced way, without harsh ideas or half-measures. After all, haste and unjustified steps now threaten appeals to the European Court of Human Rights and considerable compensation to the owners of seized assets later.
When does ability turn into efficiency?
Being in good shape will not make a gymnast an Olympic champion, and just as an engineering degree will not be a prerequisite for great discoveries. But they provide an opportunity, a base. Likewise, anti-corruption bodies need opportunities to implement the functions assigned to them.
After the start of work by NABU, SAP, ARMA, NAPC and VAKS, society expected maximum involvement from them. However, the mere creation of anti-corruption bodies, even when writing legislation that seems to be quite reasonable for their work, does not guarantee that these institutions will immediately work successfully. In addition, we have already seen that in the process of their work, lessons almost always emerge that need to be studied and, accordingly, the legal framework for their activities needs to be improved.
Due to the fact that these bodies were created and launched at different times, even under different political and social situations, their synchronization with each other and with other important departments was delayed, slowed down and was not always cloudless. And such a system can only work in full interaction and with absolute independence from the government apparatus, whose representatives must be controlled, checked and, if necessary, punished. To do this, it undoubtedly also needs very competent personnel free from any political influences, as well as legal guarantees of such independence.
Because no matter how high a level of institutions we build, no matter how much independence and powers we endow them with, the key will remain the ethical and moral component of the personnel heading the anti-corruption bodies and sending appropriate signals not only to their teams, but to the entire country. Ukraine is going through the stage of establishing an anti-corruption structure, where all its institutions are tested for strength by personnel. And this has already been confirmed by the SAP case, where the first leader to leave a “mark” was Nazar Kholodnitsky, as well as by the NAPC, which failed in its collegial format under the leadership of Natalya Korczak. Unfortunately, the results of the audit of NAPC, led by Alexander Novikov, also gave a red signal. The current heads of SAPO and NABU pass their tests for professionalism and independence. VAKS is looking for the optimal leadership format. The personnel with which institutions are filled is the basis for the direction in which they will develop.
However, over the years of work, all five bodies of the anti-corruption ecosystem have had to overcome challenges in one way or another. Some of them, like a certain confrontation between NABU and SAP in 2017-2018, have now been resolved. Others, such as the partial reluctance of the NAPC to listen to the recommendations of partners, are still relevant today. But if we evaluate the possibilities for anti-corruption, the changes are already noticeable.
It is not yet clear how quickly we will see an unconditional result. And here, unfortunately, war can become the catalyst that will show how much the ability corresponds to the readiness to achieve results. We believe that this is possible because we are already seeing the fruits of the anti-corruption ecosystem. But such a harvest, of course, should become even larger. So that, following the example of the anti-corruption bloc, we can reform the entire law enforcement system of the state.
