July, 13

Resistance of the system, trial and error: several acts of the Ukrainian anti-corruption drama

02/27/2024 12:37:05 pm
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Corruption scandals regularly shake Ukraine, and the punishment of corrupt officials, especially the most influential ones, often seems unheard of. Numerous officials appear to take every possible measure to undermine the work of new anti-corruption agencies and exploit loopholes in legislation, while the method of pressure of officials’ authority and power persists at the highest levels. However, experts in reform and anti-corruption efforts argue that the situation is much better than it appears. They emphasize that media coverage is a powerful lever in the ongoing fight, crucial in preventing the stagnation and decay of the state apparatus.

On February 14, the National Agency for Prevention of Corruption (NAPC) published a statement on its website about a new attempt to abolish the mandatory submission of electronic asset declarations. On that day, according to the announcement, the Constitutional Court was supposed to start considering the relevant complaint.

Over the past three years, this is not the first attempt of its kind, but, truth be told, the NAPC manipulated the situation, urging the public "not to allow a repeat of the constitutional crisis of 2020". The complaint only addressed the filing of declarations by the head and members of the Qualification and Disciplinary Commission of Advocacy, not all categories of declarants. Both the NAPC and the participants in the commission had valid arguments. However, the likelihood of another precedent—exclusion of a specific category of declarants from the law—likely caused concern at the agency.

The introduction of electronic declaration and the establishment of the NAPC in 2016 marked the first successful steps in a series of anti-corruption reforms that began after the Revolution of Dignity. Therefore, when in 2020 the Constitutional Court annulled electronic declaration and in 2022, under the pretext of a full-scale russian invasion, made declaration optional and closed the registers, it undermined the very foundation of anti-corruption efforts by both the government and non-governmental organizations and the media.

"When it recently became possible to see how the wealth of officials has increased, we started having cases of civil confiscation", - noted Roman Koliukhov, a lawyer working at the Center for Countering Corruption, in an interview with OstroV.

Civil confiscation is one of the new measures against corrupt officials, where the state deprives a public official of property, the sources of acquisition of which they couldn't justify. Koliukhov mentions several other anti-corruption measures adopted in the last five years, which he considers successful: the establishment of the Special Anti-Corruption Prosecutor's Office, the National Anti-Corruption Bureau, and the High Anti-Corruption Court – three entities responsible for investigating and punishing major corruption cases. He also highlights the reinstatement of penalties for illegal enrichment, establishing accountability for providing false information in declarations, and the abolition of parliamentary immunity. Ilona Solohub, a research editor at VoxUkraine, an analytical platform engaged in reform monitoring, added to this list the earlier introduction of Prozorro – an electronic system for public procurement – and the judicial reform, which progressed despite significant resistance from the judicial system.

"The creation of anti-corruption infrastructure was a challenging process: for example, the NAPC had to be relaunched several times", - she noted in an interview with OstroV. "The same is happening now with the Asset Search and Management Agency and the Bureau of Economic Security: they are not functioning properly. This is resistance from the system. Moreover, when you are writing rules for something entirely new, you cannot know in advance how they will work, so you have to adjust the rules based on experience".

Perceptions of corruption and the tools that work and don't work

Media, civil society, and honest officials have to defend anti-corruption gains almost every day. Both Solohub and Koliukhov note that the war has led to a sharp decline in Ukrainian society's tolerance for corruption. Solohub also pointed out that in recent years, as surveys show, awareness of the responsibility of all citizens for the state of the fight against corruption has noticeably increased in Ukrainian society.

In 2023, Ukraine has slightly improved its position in the Transparency International Corruption Perceptions Index—but its ranking still remains low: 104 out of 180. Ilona Solohub notes that the perception of the level of corruption is always higher than its actual prevalence. This phenomenon is observed in many countries, she added, so the VoxUkraine team is currently conducting a joint study with colleagues from Sweden, with the goal of understanding the role of the media in such a situation.

Many systemic shifts have occurred in Ukraine only as a result of corruption scandals. For example, after a series of journalistic investigations that exposed corruption in defense ministry procurements, not only did the leadership change, but they also began to seriously overhaul procurement procedures, including a "reboot" of specialized procurement agencies.

"It is necessary to write about corruption, otherwise the authorities do not react to it. On the other hand, writing about it increases its perception in society. When I talk to foreigners, I always say that publicity is our tool in the fight against corruption. There are others, but they don't always work", - said Ilona Solohub.

Successes in government actions are harder to convey to the public than the failures, especially when the government loses popularity, and individual representatives continue to get involved in corruption scandals. What may appear to the Ukrainian public as exceptional corruption may actually indicate the effectiveness of anti-corruption measures: there is more exposure and less stealing. However, in Ukraine, there seems to be an abundance of both, especially since the temptations and opportunities for officials significantly increased from 2022 due to the army's huge needs for weapons and equipment, clothing, provisions, personnel, and more.

But the worst part is that sometimes even after scandals, "some people who were involved in corruption remain in their positions and continue to engage in it", added Ilona Solohub.

This remark instantly brings to mind Oleh Tatarov, one of the deputy heads of the Presidential Office. Ukrainian anti-corruption organizations have been fighting for his dismissal practically since his appointment in August 2020. Tatarov is pointed out as an open supporter and henchman of Viktor Yanukovych's regime during the Revolution of Dignity. Moreover, in 2020, NABU and SAP suspected him of complicity in a corruption scheme.

Instead of becoming an example of the new government's purity and transparency, this case became another example of pressure of officials’ authority and power. With the efforts of the Prosecutor General's Office, led at the time by Iryna Venediktova, and still under whom SAP operates, the case was transferred to the Security Service of Ukraine (SBU), which was also under control. While the new anti-corruption bodies tried to take over the case, and the Prosecutor General's Office and Tatarov himself defended in courts, the deadlines for its investigation expired. Tatarov emerged unscathed, remaining free and in his position. Since his appointment and to this day, he coordinates law enforcement agencies in the Presidential Office.

"In the Criminal Procedure Code, which law enforcement agencies follow, there is not a single reference to the Presidential Office – the Presidential Office should be dealing with completely different matters. Selective justice, selective criminal prosecution – these are definitely not the signs of a rule of law. Therefore, for example, it is very important to provide SAP with complete independence from the Prosecutor General's Office", - comments Roman Koliukhov.

What happens in court

The Tatarov case is one of those sad examples where a significant corruption scandal ends in nothing. Roman Koliukhov warns that there are not as many such cases as one might think, considering other scandals where the individuals involved have not faced any legal consequences yet. However, some cases are genuinely progressing too slowly – either due to artificial delays by the defense or for other objective and subjective reasons, he explains.

Moreover, recently, a morally questionable mechanism has been applied against corrupt officials, wherein, in the case of unconditional admission of guilt, the criminal receives a guilty verdict from the court but does not go to prison; instead, they transfer a pre-agreed sum of money to the needs of the Armed Forces of Ukraine. According to estimates, in just one case involving the former Minister of Ecology, Mykola Zlochevsky, the Armed Forces of Ukraine were supposed to receive approximately one billion hryvnias through this method. However, this amount, perhaps, is currently the largest among all mentioned cases, and it was related to a "record-breaking" bribe that Zlochevsky attempted to offer to NABU and SAP in order to close another scandalous case. Koliukhov considers such a practice acceptable in specific cases, considering that a prolonged and uncertain legal process may result in the country receiving nothing at all. In contrast, a quick conclusion with a guilty verdict and a financial penalty, which simultaneously benefits the state and society, is preferable. After all, the needs of the army are always urgent. However, he suggests that it would be more appropriate to impose at least a few years of imprisonment in addition to financial penalties. Currently, the wealthy—meaning those who, one could argue, have stolen the most—essentially buy their way out of incarceration.

For the continuation or reopening of certain cases, anti-corruption agencies often have to fight in courts, as in the case of Tatarov. The reason for this is the so-called "Lozovyi's amendments", which were supposedly intended to serve the greater good by overcoming the inaction or abuses of investigative authorities, limiting the permissible periods of pre-trial investigations in criminal proceedings. The Anti-Corruption Action Center believes that the amendments were initially aimed at closing major anti-corruption cases.

After their introduction, significant corruption cases indeed began to be closed due to the expiration of investigation periods. This occurred, for example, with the Rotterdam+ case, which concerns the establishment of allegedly unreasonably high prices for the government's purchase of coal, and the case of Vadym Alperin, who is suspected of large-scale smuggling. However, the Rotterdam+ case has been reopened for the second time, and the reopening of Alperin's case is currently under consideration by the Appellate Chamber of the High Anti-Corruption Court, says Koliukhov. "Lozovyi's amendments were partially repealed from January 1 of this year, but only concerning the so-called factual proceedings, i.e., cases where no one was notified of suspicion. The Anti-Corruption Action Center estimated that due to this partial repeal of the amendments, around a thousand corruption cases could still be closed in Ukraine", – he added.

Interestingly, Ukraine's foreign partners generally view the state's anti-corruption measures positively. For instance, the European Commission, in its assessment of Ukraine's implementation of recommendations published before the EU summit in December of last year – which paved the way for Ukraine to begin accession negotiations with the EU – favorably noted 72 decisions by the High Anti-Corruption Court on high-level corruption since 2019. Among these, 39 were final judgments against members of the Verkhovna Rada and local councils, prosecutors, judges, and heads of state enterprises.

The demonstration of Ukrainian anti-corruption reform results abroad is just as important as within the country. Domestic disillusionment erodes the state, particularly its armed forces, whose service, once an honorable pursuit, now increasingly seems socially unjust due to numerous instances of bribery involving officials responsible for mobilization. Disappointment from governments and their constituencies in other countries means the cessation of financial and military assistance, without which Ukraine cannot withstand russian aggression. Ukraine has not yet managed to change its deeply corrupted international image, despite situational approving conclusions and comments from partners. The role of independent anti-corruption bodies is crucial in overcoming this.

"Democracy works like that"

In reality, it's the local level rather than the highest echelons of the state that remains the most problematic, according to Ilona Solohub and Roman Koliukhov. "There are almost no changes at the community level in terms of combating corruption", - says Koliukhov, who believes that the further away a community is, "the more audacious officials are, because they know no one is monitoring them". Even in some regional centers, there is a lack of independent media and civil organizations with an anti-corruption focus. Moreover, petty corruption falls not under the purview of the new anti-corruption bodies but of the police, prosecutor's office, and the Security Service of Ukraine, all of which are widely considered corrupt themselves. Thus, an individual wanting to fight corruption in such circumstances would essentially be doing so alone against a huge, well-established machine.

There is no one-size-fits-all recipe for doing things "right". Ilona Solohub advises either reporting to the official's superiors who demands a bribe, or to the police, or to journalists. Even the threat of media exposure can help, she shares from the experiences of her acquaintances. Sometimes there's an opportunity to refuse the service of an official demanding a bribe and turn to another. All of this may lead to a loss of time and doesn't guarantee an absence of problems if the corrupt official turns out to be vengeful. But at least you will remain responsible citizens and not become accomplices to a criminal offense.

In 2021, journalist Olesia Yaremchuk planned to defend her dissertation. However, instead of well-deserved congratulations and encouragement, she received a series of meaningless and practically impossible bureaucratic requirements for the formatting of her submitted work and accompanying documents from the selected academic council. The solution: everything could be fixed for an additional fee. Over time, new demands were added: to include $100 in the printed copies of the dissertation to be handed to three experts for evaluations, unofficially pay $300 to two opponents, and organize a reception for 20 people. Instead of paying and finally obtaining the desired academic degree, Olesia made this story public.

Her article in Ukrainska Pravda newspaper caused a scandal much larger than anyone could have expected from a story that did not involve high offices and large sums of money. The public was outraged by the blatant injustice and impressed by Olesia's courage and principles. Many other young researchers suddenly began to share their own similar experiences. However, some considered the exposure meaningless, stating that the system of obtaining an academic degree has been working in Ukraine in this way for decades, and one act of defiance won't break it, so those who did it should remain true to their principles but without the academic title for which they spent eight years.

But times are changing as society changes, and such scandals drive reforms, including in the cumbersome education system. "I think democracy works like that. Corruption exists in every country in the world. The question is how society reacts to it", - says Roman Koliukhov, recalling that after a series of media reports about the closure of high-profile corruption cases due to the expiration of pre-trial investigation deadlines, petitions on the President's website to repeal the "Lozovyi’s amendments" took "just a few hours" to gather the required 25,000 signatures.

By Yuliia Abibok, OstroV