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The Fog of War in the Fight against Corruption: What Preceded the European Commission's Decision

Wednesday, 08 November 2023, 12:00

If last year almost all the attention of Ukrainians was focused on the news from the front and the figures of the killed enemies, this year the focus has somewhat shifted. When reading the headlines of leading Ukrainian and foreign media, it appears that the topic of corruption at different levels of the government has completely and irrevocably captured the entire information space. 

However, the Ukrainian authorities reported that as of 2023, they fully implemented the EU recommendations, after which negotiations on Ukraine's accession to the European Union should begin. Earlier, it was expected that the conclusion of our partners would be positive.

There are many questions to these positive forecasts. Given that one of the recommendations directly concerned enhancing the fight against corruption, in particular at the highest level, the question arises: how can we discuss the implementation of EU requirements if there is an increasing number of corruption scandals around? There must be something fishy going on.

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Let me be clear: there is nothing fishy going on; there are only different prisms through which different groups of people look at the situation, perceive it, and draw their own conclusions. And, as is the case when looking at stars through different telescope lenses, only when considering all these spectra can we see the real state of things. This is what we will try to do.

Why were the EU recommendations formed like this?

Over the past 9 years, the anti-corruption component, recommendations, or conditions within the framework of our country's cooperation with Western partners have always been among the priorities. The Ukrainian authorities did not always carry out certain anti-corruption measures "on their own." Frankly, they resisted these measures more than contributed to them. However, even under such conditions, progress did take place, although not by leaps and bounds. Continuing the tradition, the EU set out certain anti-corruption requirements for Ukraine before the start of accession negotiations. These are not just isolated solutions in the form of appointments or laws. 

The European Commission turned out to be far-sighted, and that is why it included the following in the list of recommendations: "further strengthen the fight against corruption, in particular at high level, through proactive and efficient investigations, and a credible track record of prosecutions and convictions; complete the appointment of a new head of the Specialised Anti-Corruption Prosecutor's Office through certifying the identified winner of the competition and launch and complete the selection process and appointment for a new Director of the National Anti-Corruption Bureau of Ukraine." 

Two more recommendations were related to some extent, as they were supposed to ensure transparency and democracy of processes that might impact the fight against corruption, the transparent selection of the Constitutional Court of Ukraine, the restart of the HCJ and the HQCJ, as well as the legislative framework for combating money laundering.

For more than a year and a half after the full-scale invasion, the Ukrainian authorities have tried to work with all these recommendations in one way or another. However, almost every such attempt, as a result, was questionable, and sometimes the public and even ordinary Ukrainians directly opposed the suggested "reforms." In some cases, they continue opposing such unsuccessful changes to this day.

Visible part of the implemented recommendations

The problem and, at the same time, the advantage of the comments provided by the EU is that their consideration should help change the situation not only pointwise, but also systematically. That is why the society would fail to notice the implementation of some of these recommendations immediately, especially when the information field covers something else.

For example, we are sure that almost all Ukrainians noticed the long-awaited resumption of the obligation of officials to submit electronic declarations. No wonder because without the active participation of tens of thousands of Ukrainians, the full restoration of e-declaration would not have been possible at all since it was the petition to the President to veto the already adopted disastrous law that helped radically change the situation. In a month, on December 10, the Register of Declarations will be open again.

However, there are still certain shortcomings in the e-declaration system that must be corrected because their consequences, although not yet tangible, may have a negative impact on the field of e-declaration in the future.

The recently adopted law on politically exposed persons (PEP) caused no less indignation and public discussion. This document eliminates the deprivation of senior officials of the PEP status 3 years after their dismissal; a considerable number of myths have arisen around it, which we, for our part, have already debunked. It was impossible to postpone the adoption of this law because one of the recommendations of the European Commission concerned the compliance of anti-money laundering legislation with FATF standards.  

But if we consider the recommendation that we find the most interesting, which directly refers to the operation of anti-corruption bodies, our telescope definitely needs those different lenses.

What obviously needs to be improved

Undoubtedly, there have been many changes in the work of anti-corruption agencies over the past year and a half. This was possible due to the very same recommendation from the European Commission. 

As of June 2022, the Specialized Anti-Corruption Prosecutor's Office did not have a full-fledged head, although the winner of the competition was already known, yet not appointed. The competition to select the NABU head, which had almost begun before February 24, was also suspended, although the powers of Artem Sytnyk expired in April. These facts stalled corruption investigations to a certain extent; therefore, Europe drew attention to the fact that electing the heads of these institutions through competitions was important even in times of war.

Following this recommendation, in July 2022, the Prosecutor General finally appointed Oleksandr Klymenko as the new SAPO head. The competition for the position of the new NABU director also resumed, so in early spring 2023, the Cabinet of Ministers appointed Semen Kryvonos as the new NABU head.

But the appointment of the leadership of anti-corruption bodies is only one aspect of the case, in fact, it is about solving personnel issues that should have happened anyway. The fact that Ukrainians see such appointments tells them little about the fight against corruption. That is why the EU provided another part of the recommendation, not only to elect leaders, but also to demonstrate the effectiveness of the investigation of corruption cases by the agencies.

Therefore, we can say that Ukraine has implemented this recommendation of the EC as well. But here we consider things that are visible, yet distorted. 

After the appointment of Oleksandr Klymenko as the SAPO head, the amount of news about suspicion notices of corruption increased in the media. We noticed this trend already in autumn; in winter, there were even more suspicion notices; spring will be remembered for one of the most high-profile cases of this year, when Vsevolod Knyazev, the head of the Supreme Court, was caught receiving a bribe. By the way, one of the defendants, namely lawyer Oleh Horetskyi, already concluded an agreement with the prosecutor to plead guilty, with one of the conditions being that he would share the details of this scheme. As for Vsevolod Kniazev himself, the pre-trial investigation has been completed, and the materials have been opened to the defense for review.

That is, the investigation and consideration of corruption cases in the courts has long been in full swing. Why then do many Ukrainians feel that nothing is happening in this area? The answer is simple: one needs to change the lens for the telescope.

Would we be reading all those headlines about suspicion of corruption had the NABU and the SAPO not worked? Hardly. Is their work enough? Undoubtedly, not enough. 

The work of the five bodies of the anti-corruption ecosystem — the NABU, the SAPO, the NACP, the ARMA, and the HACC — depends not only on their having a head, but also on the extent to which the institution can perform the functions assigned to it. That is, whether there are obstacles for these state bodies to yield the desired result.

For example, the continued absence of a full-fledged head of the SAPO has shown how important its greater autonomy is, as well as the expansion of the powers of leadership. After changes in the issues of parliamentary immunity, it is also essential that all key decisions in criminal cases on corruption be adopted by the SAPO head or his acting head, and not exclusively by the Prosecutor General. Let's be honest: this position in Ukraine remains politically dependent. So far, there haven't been any changes in this regard, although there are legislative initiatives in the parliament that can rermedy this.

The NABU still does not have the opportunity of independent wiretapping of defendants in the cases and there is no expert institution under the agency for a quick and objective examination. 

The remnants of "Lozovyi's amendments" continue to destroy corruption cases, and the HACC cannot ignore them, so it has already closed some high-profile criminal proceedings with multimillion probable losses to the state due to the expiration of the statute of limitations.

The war has made other problems that used to be frequently overlooked by the public more visible: schemes in the procurement of state bodies, the most high-profile last year being the tenders in the Ministry of Defense. Corruption in the territorial centers of recruitment and support is another trouble, which was not visible before the full-scale invasion, but today, it is the topic of all the news stories.

Would the introduction of all the necessary changes influence the performance of the anti-corruption ecosystem bodies and the tone of the headlines in the media? It sure would. To see the effectiveness of the path that we have already taken, it is worth focusing on the results that the bodies of the anti-corruption ecosystem have already achieved. 

Where are the results? 

Most often, when it comes to the effectiveness of the fight against corruption, people talk about imprisonment. Allegedly, since no one is imprisoned and there are few guilty verdicts, there is no fight against corruption. But this impression is false.

We have repeatedly said this but let me remind you again: high-profile corruption cases take time to investigate and consider because they require investigators and prosecutors to carefully collect evidence and, on the part of the court, to study dozens or even hundreds of volumes of case materials, and they often entail very long hearings of the arguments of the prosecution and defense. Given that senior officials suspected of corruption can often afford expensive and motivated lawyers, consideration of such cases can take a very long time.

However, even this does not slow down the overall dynamics of anti-corruption institutions. As the number of suspicion notices has grown, the burden on the HACC has also increased, which, of course, affects the speed of consideration of cases. Fortunately, in late September, the HCJ considered the issue of increasing the number of judges in the High Anti-Corruption Court, so it is quite possible that the situation will change soon.

But even despite the heavy workload, over the past year, the HACC has ruled on a number of quite high-profile cases. Let's look back on some of them.

Case of Dmytro Sus (ex-deputy of one of the heads of the department in the Prosecutor General's Office). The HACC began considering this crime in September 2019 and delivered a verdict in January 2023. Sus was found guilty of misappropriation and embezzlement of property obtained during the searches and sentenced to 9 years in prison with deprivation of the right to hold certain positions for 3 years and confiscation of property. According to the results of the appellate consideration, the HACC Appeals Chamber reduced the term of the sentence to 7 years. Currently, this decision is being appealed to the Supreme Court.

Case of ex-judge Mykola Chaus. In June 2023, the HACC found Chaus guilty of demanding a bribe of USD 100,000 in 2016 for a positive decision in a criminal case. The ex-judge was sentenced to 10 years in prison with additional penalties; Chaus was detained in the courtroom. The case is currently considered by the HACC Appeals Chamber.

The case of "a super bribe" of USD 5 mln to the leadership of NABU-SAPO. In this story, all four defendants in the case admitted their guilt. Olena Mazurova was sentenced in 2021 and agreed to give incriminating testimony against the other defendants. In 2023, lawyer Andrii Kicha, First Deputy Head of the Tax Service of Kyiv Mykola Iliashenko, and the main defendant in the proceedings, ex-Minister of Ecology Mykola Zlochevskyi, also concluded a deal.

But, perhaps, one of the most high-profile cases this year was the verdict against MP Oleksandr Trukhin. The NABU accused the MP of bribing patrol officers at the scene of an accident; he offered the cops money in exchange for leaving the scene of the accident. Trukhin pleaded guilty, concluded an agreement with the prosecutor, which, for its part, was approved by the HACC, and was fined UAH 68,000. Under the terms of the agreement, the MP transferred more than UAH 6 mln to the needs of the Armed Forces of Ukraine.

In general, the dynamics over the last year and a half have been quite noticeable. In 2022, the HACC passed verdicts in 37 cases; in total, in 2022, 268 proceedings were under its consideration, of which 219 were not considered as of the end of the year. From the beginning of 2023 until the end of October 2023, judges of the HACC passed verdicts in 51 criminal cases, and 260 more criminal proceedings are under its consideration.

If we recall that since the launch of the HACC in 2019, the court has passed 146 verdicts, 8 rulings in civil cases, and 30 rulings in administrative cases (primarily, regarding the confiscation of (pro-)Russian assets), talking about the lack of results of its work, especially last year, is simply inappropriate.

Yes, there are many questions about some decisions of the Anti-Corruption Court, but, fortunately, the openness of the court allows them to be asked. It is within the power of the court itself, the authorities, and the public to continue working to improve the operation of the HACC so that there are even more fair decisions, and not just cases of imprisonment.

What can we do to see the invisible?

Undoubtedly, the European Union took certain positive changes into account. To avoid internal dissonance, Ukrainians should also try to notice them.

After all, the fog of war covers not only the front line, but also other spheres of the country's life, sometimes preventing some officials from seeing the reality. 

All of us, one way or another, will live in this fog until the victory, and in order to find the way in it, it is necessary to rely on clear and truly effective things, such as the specific, although perhaps not very full in someone's opinion, recommendations of the European Commission on the start of EU accession negotiations; or the recommendations of the IMF to enhance transparency and democratization in the economy and public administration; or the list of priority reforms from the United States, which also covers almost all anti-corruption problems in our country.

All this is about the fight against corruption, which should take place and be considered at all levels. Ukraine has already taken certain steps to do this; they may seem invisible, but they are really significant. However, many steps remain to be taken so that not only the answers to the EU’s "questionnaire" change, but also the headlines in the news and, ultimately, the perception of the situation by Ukrainians. 

Only in this way will we get out of this fog and be able to survive and rebuild our state after the victory.

Disclaimer: Articles reflect their authors point of view and do not claim to be objective or to explore every aspect of the issues they discuss. The Ukrainska Pravda editorial board does not bear any responsibility for the accuracy of the information provided, or its interpretation, and acts solely as a publisher. The point of view of the Ukrainska Pravda editorial board may not coincide with the point of view of the articles author.
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