The Agenda for Justice: a year later

The Agenda for Justice: a year later

A year ago, 19 NGOs put forward a list of demands, aimed at a single goal - the establishment of the rule of law in the country, to the participants of the parliamentary elections race.

It included a comprehensive reform of the judiciary, the prosecutor's office, the police, and the reset of some anti-corruption bodies. Three political parties that went to parliament, namely the Servant of the People, Holos, and Batkivshchyna, supported this agenda. The first of them managed to form a single ruling majority.

What are the results of 9 months work of the new parliament? Did the deputies fulfill the promise?

DONE

Restoration of punishment for illicit enrichment

During the second week of its work - on September 11, 2019, the Verkhovna Rada supported in the first reading the law, which restores criminal liability of officials for illicit enrichment, and on October 31 finally approved it with 259 votes. From now on, such liability is established if the assets acquired by an official exceed his/her legal income of more than UAH 6.5 million.

As of June 2020, NABU is investigating only two criminal cases of illicit enrichment. New proceedings can be expected after the submission of annual declarations for 2019.

NACP reboot

On October 2, 2019, the Verkhovna Rada with 237 votes approved amendments to the Law on Prevention of Corruption, which launched the reform of the NACP. The National Agency has ceased to be a collegial body and is now headed by a chairman who is fully responsible for the agency's work, efficiency, and transparency. After amendments came into force, the entire NACP was dismissed. The commission for the election of a new chairman was formed equally of representatives of the Cabinet of Ministers and international experts, and, according to the quota of the Cabinet of Ministers, public activists were included in it. According to the results of the competition, on December 16, the commission unanimously elected prosecutor Oleksandr Novikov as the chairman of the NACP. On January 15, 2020, he was appointed to the post by the Cabinet of Ministers, and on January 24 he elected his first two deputies - Roman Sukhostavets and Ivan Presniakov.

Prosecutors` salaries and staff

The Law on the Reform of the Prosecutor's Office of September 19, 2019, reduced the maximum number of prosecuting bodies from 15 to 10 thousand people. In particular, out of 1,340 prosecutors, only 610 remained in the Office of the Prosecutor General after three stages of attestation. As of May 2020, 687 prosecutors had not passed the attestation and were subjects to dismissal.

The law also provided for a significant increase in the salaries of prosecutors: from 12 to 15 subsistence minimums. Thus, employees of the Office of the Prosecutor General since the beginning of the year began to receive UAH 29 thousand (instead of 7 thousand), and in regional prosecutor's offices - UAH 23 thousand, without taking into account bonuses and allowances. However, the system of accrual of premiums is still not devoid of subjective factors.

International procurement of medicines

On September 19, 2019, the Verkhovna Rada adopted in the second reading amendments to the Law on Public Procurement. According to them, the right of the Ministry of Health to involve international organizations in the procurement of medicines was extended for another two years. Until then, the State Enterprise "Medical Procurements of Ukraine", which will take over this function, should start working at full capacity.

PARTIALLY COMPLETED

Whistleblowers

On October 17, 2019, the Verkhovna Rada adopted amendments to the Law on Prevention of Corruption, which for the first time defined the legal status of a “whistleblower” - a person who reported a corruption offense. The law guarantees whistleblowers protection. The Law ordered anti-corruption commissioners to set up secure communication channels (hotlines, e-mail boxes, etc.) that would allow the whistleblower to remain anonymous. But despite the fact that the law came into force on January 1, the process of creating such channels was delayed. In May 2020, a group of deputies registered a bill that provides for the creation of a single portal for reporting whistleblowers. Its maintenance is planned to be assigned to the NACP. It is believed that this will simplify the processing of information and guarantee a higher level of protection.

Financial reporting of political parties

On December 19, 2019, the Verkhovna Rada passed Law № 410-IX, which allowed parties to submit financial statements in electronic form. The National Agency on Corruption Prevention must launch an electronic system for submitting such reports within 6 months from the date of its entry into force. The NACP has approved a new reporting form and is currently working on a Unified State Register. Its full launch is promised on July 16.

Anti-corruption strategy

One of the functions of the National Agency on Corruption Prevention is to develop a draft of the State`s anti-corruption strategy to be approved by the Verkhovna Rada, as well as to monitor its implementation. Due to the inefficiency of the previous NACP, Ukraine has been living without such a strategy since 2017. The new head of the agency, Mr. Novikov, who was appointed at the end of the last year, called the adoption of the Anti-Corruption Strategy for 2020-23 one of his priorities and planned to submit its draft to the Parliament by March, in early June it still didn`t happen.

On June 4, NACP Deputy Chairmen Mr. Presniakov and Mr. Starodubtsev took part in an online discussion “4 months of work of the renewed NACP: results and prospects”, organized by the NGO “Anti-Corruption Headquarters”. They said that the first draft of the strategy is planned to be published in the first half of June. Finally, it was published on the website of the National Agency on June 23. Public discussions and consultations are planned until July 10.

Prosecutor's office reform

On September 19, 2019, the Verkhovna Rada adopted in the second reading the presidential bill on the reform of the prosecutor's bodies. It approved a new structure of these bodies: the Office of the Prosecutor General was created and instead of regional and local prosecutor's offices - district and county offices. At the same time, the new bodies were to be selected on the basis of comprehensive certification. NGOs welcomed the idea of ​​rebooting but pointed to a number of risky aspects of the new law. For example, instead of clearing the Qualification and Disciplinary Commission of Prosecutors, it provided for the suspension of its work until September 1, 2021. Meanwhile, the functions of attestation and disciplinary involvement of prosecutors were entrusted to the personnel commissions of the Office of the Prosecutor General and regional prosecutor's offices, which were to be created by the Prosecutor General alone. However, the procedure approved by Mr. Riaboshapka provided that 3 out of 6 members of such commissions should be delegated by international partners, but the success of the model was tied solely to the Prosecutor General. In May 2020, Prosecutor General Iryna Venediktova approved a new procedure and removed internationals from the commissions. From now on, commissions consist of 4 prosecutors and 2 representatives of the higher education institutions, which, according to anti-corruption organizations, distorts the essence of the reform.

In addition, from January 1, 2020, the Prosecutor General received additional powers related to the lifting of parliamentary immunity: from now on, only the Prosecutor General can open proceedings against deputies by entering data into the Unified register of pre-trial investigations. Despite the considerable weight of this position, the process of selecting candidates for it has remained political. For example, in March 2020, deputies learned the name of the future Prosecutor General only half a day before the vote.

State Bureau of Investigations reboot

On December 3, 2019, the Verkhovna Rada approved in the second reading the presidential bill on the reform of the State Bureau of Investigation. According to the bill, the SBI changed its status from a central executive body to a state law enforcement body. The powers of the director of the bureau have been significantly strengthened. From now on, SBI`s director became the sole head, without having to coordinate decisions with his deputies. Also, the director received the right to independently appoint and dismiss deputies without the participation of an external personnel commission. After the changes were approved, the current director of the SBI, Roman Truba, was fired, and the new head was to be elected by a competition commission of 3 representatives from the president, 3 from the Cabinet of Ministers, and 3 from the Verkhovna Rada. However, in the 6 months since Truba's resignation, the commission has not been formed, although the law has set clear deadlines for this: 30 days for the nomination of representatives, 14 for the formation of the commission, and another 60 for the competition itself. For example, on May 19, the Verkhovna Rada failed to vote for its representatives on the commission, and on June 5 it did so again. Finally, at a meeting of the law enforcement committee on June 10, it was decided that deputies could not be representatives of the Verkhovna Rada. The new deadline for nominations is set for June 19, the selection must end by July 1.

Meanwhile, on December 27, the president appointed Irina Venediktova, a deputy from his own party, as a temporary acting director. After Venediktova was appointed Prosecutor General, on March 17 her deputy Oleksandr Sokolov became SBI`s acting director.

NOT COMPLETED

SAPO management

NGOs have repeatedly demanded the resignation of the head of the Specialized Anti-Corruption Prosecutor's Office, Nazar Kholodnytsky, who is suspected of a "flowing off" of high-profile cases, pressure on subordinates, and disclosure of investigation materials. Last year, this demand was supported by US Ambassador Marie Yovanovitch. However, for a long time, the new government did not make any claims to the work of the SAPO. It was not until May 26, 2020, that Prosecutor General Iryna Venediktova issued a statement accusing the SAPO`s management and prosecutors of improper performance of official duties. She gave examples of cases that were not brought to court within a reasonable time, which led to their closure. Venediktova initiated two official investigations against Kholodnytsky and confirmed on June 9 that in the SAPO`s head work were found violations of the CPC, of the Law on the Prosecutor's Office, and of the provisions on the SAPO. The complaint against him was forwarded to the disciplinary commission at the President`s Office, which may dismiss the chairman of the SAPO or reprimand him. Reminder: Kholodnytsky's 5-year term expires on November 30, but he has the right to apply for the second term.

Independence of SAPO

The Specialized Anti-Corruption Prosecutor's Office still remains a structural unit of the Office of the Prosecutor General. This significantly restricts its freedom, both in administrative matters (staffing, structure) and in finance. Last summer, the relevant organizations drafted a bill to transform the SAPO into a separate legal entity as a regional prosecutor's office, but no steps have been taken to adopt it.

Director of NABU

The position of NABU director is protected by law: he can be dismissed based on the results of an independent audit of the bureau's work, in the event of a court conviction and on a number of grounds listed in the relevant law. This should guarantee the independence of the director from political influences. At the same time, on February 7, 2020, a draft resolution on dismissal of Artem Sytnyk from the position of NABU Director was registered in the Verkhovna Rada. The resolution was signed by 216 deputies, including from the ruling Servant of the People party. On February 19, the resolution was considered by the law enforcement committee and the committee recommended to submit the resolution to the Verkhovna Rada. The reason for this was Sytnyk's inclusion in the NACP's "register of corrupt officials" due to a fine imposed on him by a court last September. The NABU director allegedly did not declare the money spent on vacation.

It should be noted that the imposition of an administrative fine is not a ground for dismissal of the NABU director, as acknowledged by the Speaker of the Rada Dmytro Razumkov. But according to some deputies, a "corrupt official" cannot head the Anti-Corruption Bureau. That is why on February 28 a bill was registered in the Verkhovna Rada, which amends the Law on NABU and adds administrative offense to the list of grounds for dismissal of its director.

Sytnyk believes that oligarch Ihor Kolomoisky (the bureau investigates the cases of Privatbank) and Interior Minister Arsen Avakov (NABU was conducting the so-called "backpack case", one of the suspects in which was the minister's son Oleksandr) are involved in the campaign for his resignation.

Attempts to dismiss the NABU director have caused concern among international partners.

Minister of the Internal Affairs

On August 29, 2019, the Verkhovna Rada of the 9th convocation at its first meeting appointed ministers to the new government of Oleksiy Honcharuk. The day before, a protest took place on Bankova Street, demanding that the Internal Affairs Minister Arsen Avakov don`t keep his chair. Activists accuse the minister of sabotaging police reform, corruption, and the failure of high-profile cases. Despite this, deputies approved Avakov for the post by 281 votes. He was then called a "temporary" candidate, but in 9 months no alternative was found. On March 4, 2020, Avakov was re-appointed to Shmyhal's government. He is personally supported by President Zelensky. On May 20, 2020, during the annual press conference, he called Avakov a "powerful minister." On May 25, an incident in Kaharlyk, where police officers beat and raped a woman, became known to the public. The local department of the National Police was disbanded. Avakov was invited to a closed meeting of the Verkhovna Rada`s Committee on Law Enforcement, but he did not appear. On June 5, a resolution on Avakov's dismissal was registered in the Rada, signed by 55 deputies from the Servants of the People and Holos factions. On June 17, the law enforcement committee put the resolution on the agenda of the session.

Bureau of Financial Investigations

The need to create a single law enforcement body to investigate economic crimes was identified in the 2008 Concept of Criminal Justice Reform. Since 2013, several attempts have been made to establish such a body, in the format of either the Financial Investigation Service or the Financial Police, or the Financial Investigation Bureau. However, all of them ended in failure for political reasons. Economic crimes are still being investigated by the National Police, although the Department of Economic Protection, which was part of it, was solemnly liquidated on September 2, 2019, at the first meeting of the Honcharuk`s Cabinet of Ministers. Economic crimes are handled by the "tax police" - a body with semi-legal status within the State Fiscal Service. Deputies officially liquidated it in 2016, but did not create a replacement body, so the "police" is still working (investigating tax evasion). Finally, economic crimes often come to the attention of the Security Service of Ukraine, which includes the entire State Counterintelligence Directorate in the field of economics, as well as the Department "K" for the fight against corruption and organized crime. The latter is regularly accused of unlawful pressure on the business.

A new attempt to establish a financial investigation body took place after the 2019 parliamentary elections. On October 2, the Verkhovna Rada passed in the first reading a bill recognizing the BFI as the central executive body, whose exclusive powers include the investigation of economic crimes. At the same time, the project did not liquidate the SBU's economic units, which was called for by the public.

But on January 17, 2020, deputies rejected this bill in the second reading. According to media reports, a new one was to be developed by the beginning of February in the President's Office, but as of June, this did not happen. The requirement to establish an independent financial body has even been included in a new memorandum with the IMF (the law must be adopted by January 1, 2021).

Security Service of Ukraine

The Security Service of Ukraine (or SBU) still remains a hybrid body, whose powers go beyond the functions of the classic security service. In particular, it deals with the fight against corruption, organized crime, crimes against the state, which are too broadly defined. The law on national security, adopted in 2018, provided for the reform of the SBU with its transformation into classic counterintelligence, demilitarized, and deprived of investigative functions. This model is supported by Ukraine`s Western partners. However, the presidential bill submitted to the Verkhovna Rada on March 10, 2020, completely contradicted this logic. According to it, the SBU retains the function of pre-trial investigation, and the definition of "threats to state security" contained in the draft has become even vaguer, which allows the Service to investigate almost any case (even those related to the protection of “moral and ethical, historical and cultural” values ​​of Ukraine).

An international advisory group to the SBU has criticized the draft changes, joining the criticism in both the EU Advisory Mission and NATO. As a result, at a session of the Verkhovna Rada on May 20, deputies returned the bill to the committee for revision. Chairman of the Committee on National Security, Defense, and Intelligence Oleksandr Zavitnevych believes that in general, it will be possible to adopt the bill before summer vacation.

Judicial reform

On October 16, 2019, the Verkhovna Rada adopted the Presidential Bill №193-IX on Judicial Reform as a whole. According to its provisions, the entire composition of the High Qualifications Commission of Judges ceased to function, and a new one was to be selected through an open competition. The competition commission was to consist of three representatives from the Council of Judges and three from the Public Council of International Experts. However, the High Council of Justice prescribed the terms of the competition in such a way that the role of the commission was leveled. For example, the HCJ has reserved the right to appoint not only the winners of the competition but also anyone it wishes. The internationals refused to delegate representatives to the commission, and on March 17, 2020, the HCJ declared the competition invalid.

According to another provision of the law, the High Council of Justice was to be reduced from 16 to 12 members. Its members from 2013 to 2019 were now subject to lustration. The HCJ was also to set up an ethics commission of three council representatives and three international experts to check the integrity of HCJ members, the HQCJ, and the Supreme Court, and to initiate their dismissal. Moreover, with an equal distribution of votes, the role of internationals would be crucial. However, the HCJ blocked the creation of the commission, simply not delegating members to it.

The final line under Zelensky's judicial reform was drawn by the Constitutional Court, which on March 11 declared a number of its provisions unconstitutional. In particular, the norm on the ethics commission, on reducing the number of the Supreme Court’s judges and on the High Council of Justice was abolished. As a result, the reform stalled. HQCJ has not been operating for six months, blocking the process of filling more than 2,000 vacancies in the judiciary.

On June 22, President Zelensky introduced a new bill on judicial reform in the Rada. He has already been criticized by public organizations, as the cleaning of HCJ relies on the HCJ itself, and The Commissioner of the Verkhovna Rada for Human Rights, who is considered to have compromised ties with Pavlo Vovk, the head of the Kyiv District Administrative Court, may take part in the formation of the competition commission for the selection of the new HQCJ.

Note that the text of the new memorandum with the International Monetary Fund indicates the adoption of amendments to the law on HCJ, which should ensure the purification of this body, is marked as one of the structural milestones of the implementation of the cooperation program. Such changes should be adopted by the end of October.

Constitutional Court

The Constitutional Court is a body with a unique set of powers to protect the legal system of Ukraine. But the process of selecting judges is still politicized and non-transparent. Since 2017, it is held on a competitive basis. However, the entities responsible for conducting competitions (namely, the Committee on Justice under the quota of the Verkhovna Rada, the competition commission under the quota of the President and the Council of Judges under the quota of the Congress of Judges of Ukraine) do not provide adequate transparency. For example, the Commission held its meetings in a closed mode for the public and journalists, and the Parliament`s Committee without clear justification rejected candidates who were not supported by parliamentary factions (although the law does not require it). In addition, the criteria for assessing the moral qualities and competencies of candidates remain unknown. None of the selection subjects published a clear evaluation algorithm and rating criteria. This may indicate a significant percentage of subjectivity in decision-making. The council of the new convocation did not take steps to solve this problem.

Legal education

On February 26, 2020, the Verkhovna Rada Committee on Education, Science, and Innovation published a draft Concept for the Development of Legal Education. According to the draft, it is planned to reduce the list of legal specialties. From now on, the specialties "International Law" and "Law Enforcement" will not be considered as higher legal education. The possibility of distance learning for lawyers is abolished. External quality control of legal education quality is being introduced in the format of a single state qualifying exam. So far, the project is under discussion.

CONCLUSIONS

Despite the brisk pace taken by the new Verkhovna Rada at the beginning, by the end of 2019, the reformist impulse has died down. Systemic reforms, such as the judiciary or the reform of the prosecutor's office, have not been completed. The Security Service of Ukraine remained unreformed. The compromised leaders of the Ministry of Internal Affairs and the SAPO retained their positions. Pressure on anti-corruption bodies continued.

In contrast, among the successful reforms is the reset of the NACP, which made it possible to unlock the work of the body and improve its functionality.

The Agenda for Justice certainly remains relevant. This is evidenced in particular by the inclusion of some of its items in the new memorandum of Ukraine with the International Monetary Fund. The civil society sector must continue to put pressure on the authorities to fully implement these requirements. After all, without effective rule of law, the development of Ukraine as a successful and democratic state is impossible.

Anti-corruption Headquarters Analytic expert

Rodion Khomiakov

×