CommentaryJURIST Guest Columnist Anna Udartsova is an LL.M. Candidate at the University of Pittsburgh School of Law, and has interned for the public prosecutor’s office in Donetsk, Ukraine. In the third entry of a 14-part series from the LL.M. students of the University of Pittsburgh School of Law, Udartsova examines the effectiveness of Ukraine’s new anti-corruption legislation….
Transparency International ranked 183 countries on a scale according to their perceived corruption within the public sector, ranking “clean” countries at the top of the list and highly corrupt countries at the bottom. According to the Corruption Perception Report published December 1, 2011, Ukraine was ranked 152nd, meaning only 31 of the countries examined were found to have higher perceived levels of corruption. Currently, one of the main goals of the Ukrainian government is to fight corruption, which has steadily increased in recent years.
Ukraine’s first Anti-corruption Act was adopted in 1995. Because of the recent rise in corruption, the Office of the General Prosecutor has initiated several criminal cases against judges and deputies accused of corruption. The increase in corruption suffered by the nation implies that the Anti-corruption Act of 1995 has been ineffectual. This is likely due to gaps in the legislation. While providing, descriptions, definitions and classifications, the act did not provide a mechanism for realization or a means for how the law would be applied. Therefore, since 2010, the president and the government have decided to improve the legislation, and abolished the Anti-corruption Act of 1995. On April 7, 2011, the parliament adopted the final version of a new Anti-corruption Act that went into force on June 1, 2011. Additional provisions went into force on January 1, 2012.
Since it entered into force, many criminal cases have been initiated under the new Anti-corruption Act. According to the prosecutor’s data, in the last year alone, more than 1,800 criminal cases with elements of corruption were sent to the courts of Ukraine, and more than two million people have been brought to justice.
Currently, the prosecution focuses its efforts on combating corruption at the higher levels of power. Thus, for the first time since the independence of Ukraine, government officials are being investigated and prosecuted for corruption. Most of the actors have been accused of receiving bribes, abusing power and authority, and wrongful acquisition of state property. In total, the prosecution has initiated 25 criminal cases for offenses in which the state has suffered losses of more than USD 1 billion. Additionally, bribes have exceeded USD 3 billion.
The act purports to improve upon the 1995 act in a few major ways. First, this law focuses on methods of preventing and counteracting corruption in the public and private spheres. This includes reimbursement for losses that result from corruption, the restoration of rights and liberties of individuals, the rights and interests of legal persons and the interests of the state.
Second, in comparison to the 1995 act, the new act imposes restrictions on the extent to which official positions may combine and overlap with other activities. For the first time a restriction was put on receiving gifts. According to Article 8(2) of the Anti-corruption Act, state actors may accept a gift if the value of such a gift does not exceed 50 percent of the minimum wage on the date the gift was given, and the single or combined value of such gifts derived from a single source during a year cannot exceed the minimum wage set on January 1, 2012.
Other restrictions are put on employment opportunities of people in relationships with state actors. Restrictions are put on officials who resign from office or withdraw from activities related state and local government activities. These individuals may not, within one year of the date of resignation or termination, conduct business relating to the governmental organization for which they previously worked. Also, individuals may not disclose or use information that they became aware of while holding their former governmental position. And individuals are banned from representing the interests of others against the authority they previously worked for. This rule will particularly influence lawyers who move from civil service to private practice. It should, however, be noted that the current legislation does not provide a definition for “public service.” Furthermore, the law does not make a distinction between the terms “official” and “officer.” This lack of clarity could lead to significant complications in applying the law in practice.
Third, according to the act, a compulsory anti-corruption test will be given to persons who apply for positions in state and local government. In addition to the examination, prospective government employees must provide autobiographical information, a tax declaration, a document certifying any degrees and a medical certificate.
Despite these improvements, a troubling contradiction remains. The law provides that the president of Ukraine must approve the orders for the aforementioned investigations of individuals under Article 11(3). The Central Election Commission must determine the procedure for conducting a background check on candidates for Ukraine’s presidency, for its deputies, for the deputy of the Verkhovna Rada of Crimea and for positions in local councils in villages and townships. This is inconsistent with Article 106 of the Constitution of Ukraine, which does not give the president the right to approve special checks on people who apply for positions related to state and local governments.
The provisions of Article 12, on financial control, also seek to provide for better enforcement accountability under the new Anti-corruption Act. This provision provides that all actors must annually file, at their place of work, a declaration of property, income, expenses and other financial obligations during the past year.
Among some of the other improvements, the Ministry of Justice now has a duty to carry out anti-corruption inspections on legal acts drafted by the president of Ukraine and the Cabinet of Ministers of Ukraine, as well as other ministries and central executive bodies. However, the law does not provide sanctions if corruption is found. In another innovation, the law provides for the formation of a unified state registry, which will contain information about persons who are prosecuted for corruption offenses, allowing the Ministry of Justice to perform its job more efficiently in the future. Also, persons being prosecuted for corruption are now prevented from obtaining their positions until trial, unless otherwise provided by law. Importantly, the law also allows for public participation in preventing and combating corruption. More specifically, the public has the right to report corruption offenses to a specially authorized anti-corruption body.
While it is too early to assess the effectiveness of the new legislation, it seems that the Ukrainian government is finally implementing sanctions for corruption and enforcing accountability measures for its public sector workers. The pre-employment test for new government workers and limitations on former government employees will likely produce positive results in Ukraine’s fight against corruption. Hopefully, the new act and heightened awareness regarding the pervasive issue of corruption within Ukraine’s public sector will bring about a lower perceived corruption index, and the people of Ukraine will begin to see that their government does value fairness and justice.
Anna Udartsova received both her bachelor’s and master’s degrees in law from the Donetsk National University in Donetsk, Ukraine. During her legal studies Udartsova was a member of the European Law Student Association’s Delegation to the UNCITRAL Working Group II on Arbitration and Conciliation. She was also a member of the Donetsk 2011 Vis International Commercial Arbitration moot team, and a member of the 2010 team for the European Moot Court Competition on WTO law.
Suggested citation: Anna Udartsova, Evaluating Ukraine’s New Anti-Corruption Law, JURIST – Dateline, Apr. 17, 2012, http://jurist.org/dateline/2012/03/anna-udartsova-ukraine-corruption.php.
This article was prepared for publication by Emily Osgood, an assistant editor for JURIST’s student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org
