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English language version of the Concept produced within the framework of UNDP “Democratization and human rights” Project with support of the Ministry of Foreign Affairs of Denmark

Draft (24.03.2014) Prepared by a Working Group with support of the International Renaissance Foundation Ukraine’s Corruption Prevention System Reform Concept Over the years of Ukraine’s existence as an independent state, certain legislative and organizational principles have been established to combat corruption. However, the current state of corruption in the country shows that these principles have been ineffective. Among the key causes are the lack of a strategic vision of what a nationwide system of anti-corruption institutions should be like in order to ensure that corruptive behaviours are curbed both in the public and private sectors. A result of this is the lack of systematic efforts to analyze corruption threats, eliminate or prevent those threats as well as control corruption in the public sector. It is therefore necessary, after analyzing legislative regulations and institutional framework for the implementation of the key state functions related to corruption prevention, to prepare proposals as to the creation of a comprehensive system of mechanisms to prevent corruption. Indicated below are the key functions to prevent corruption, bodies responsible for their implementation as well as the state of their implementation. Functions to prevent corruption Development, monitoring and coordination of the implementation of the anti-corruption policy

Bodies (subdivisions) responsible for implementation National AntiCorruption Committee (NAC) Ministry of Justice Government Agent for Anti-Corruption Policy (GA)

Special screening of Subdivisions civil service job relevant bodies

State of implementation

Partially implemented No legislation defining anticorruption policy and its components Competences, largely overlapping, dispersed among different bodies, with some of the functions (analysis, research, policy monitoring and coordination, public relations and information campaigns) not implemented altogether No responsible body identified, NAC and GA having taken themselves off this job of Implemented Imperfect and cumbersome


English language version of the Concept produced within the framework of UNDP “Democratization and human rights” Project with support of the Ministry of Foreign Affairs of Denmark

applicants

Ministry of Health, Ministry of Justice, Ministry of Education and Science, Ministry of Defence and Tax Service

screening procedure and disorganization of the bodies responsible for the conduct of screening resulting in overlong screenings, conducive to corruption and exertion of inappropriate influence on these bodies Control over Authorized Virtually no legislation (contains observance of the subdivisions of state general principles only) conflict of interest bodies The subdivisions have no legally prevention rules established status or (regarding, inter alia, competences, their operations plurality of offices, not being guaranteed receiving gifts, No institutional framework in employment of close some of the crucial sectors such relatives and as legal proceedings, restrictions after leaving representative bodies of power office) etc No special authorized body responsible for monitoring of the current situation and policy development Control over Authorized No mechanisms to detect completeness and subdivisions of state inadequacies in data, no accuracy of data in bodies centralized automated database declarations of declarations, most declarations inaccessible to the public, no sanctions for providing inadequate data The subdivisions have no legally established status or competences, their operations not being guaranteed No special authorized body responsible for monitoring of the current situation and policy development Monitoring of the None Not implemented “lifestyles” of certain categories of civil servants (for correspondences


English language version of the Concept produced within the framework of UNDP “Democratization and human rights” Project with support of the Ministry of Foreign Affairs of Denmark

between properties owned and declared) Ensuring compliance of civil servants’ behaviour with ethical standards

“Integrity checks” of civil servants Anti-corruption expert examination of draft acts

No special authorized bodies or subdivisions Implemented to a certain extent by personnel or disciplinary bodies None

Ministry of Justice Committee of the Verkhovna Rada of Ukraine in charge of combating corruption Implementation of None departmental risk analysis based anticorruption policies and programmes in state bodies Creation of mechanisms None for voluntary reporting of suspected corruption, verification of information and protection of whistleblowers Maintenance of a Ministry of Justice register of individuals brought to justice for corruption offences Maintenance of a None register of legal entities brought to justice for corruption offences

Not implemented as a specific function Implemented by way of exception only in the course of disciplinary proceedings No special authorized body responsible for monitoring of the current situation and policy development Not implemented Implemented ineffectively, failing to prevent decisions conducive to corruption from being taken Purely formal plans to combat corruption implemented in some subdivisions No state policy in this field No legislation, only general orders No mechanisms for internal or external reporting envisaged in legislation or in practice. No special authorized body responsible for monitoring of the current situation and policy development Register created. Open for individuals entered in the Register in 2014 only. Modus operandi making effective information search impossible. No legal maintenance created

framework for of the register


English language version of the Concept produced within the framework of UNDP “Democratization and human rights� Project with support of the Ministry of Foreign Affairs of Denmark

The core legislative act regulating corruption prevention and counteraction is the Law of Ukraine on Principles of Preventing and Counteracting Corruption. As it was being developed, it was supposed to be a framework law containing only the basic principles, which would lay the foundation for other laws determining how the anticorruption mechanism would function in the country. Most of these principles have however never known any further development in any other legislative acts. On the other hand, the framework law incorporates some norms regulating in quite a detailed way some institutions such as special checks or declaring incomes, properties, expenses and financial liabilities of civil servants, thereby distorting the original idea of a framework law. There can be two legislative solutions to establish a preventive anti-corruption mechanism: 1) revision of the framework law and adoption of a package of special complementary laws, each of them regulating one or more institutions; 2) adoption of a new law which would ensure comprehensive regulation of the corruption prevention system as a whole. Each of these options having its advantages, it seems more appropriate to adopt a new law establishing a comprehensive system of the core corruption prevention mechanisms, including their institutional support. The key element of the system uniting all the corruption prevention instruments would be a specialized anti-corruption body which would develop, coordinate and monitor the implementation of the policy as well as control compliance with the anti-corruption legislation. Considering the above, a new Law on Corruption Prevention is proposed to be prepared, which would define the basic anti-corruption concepts, a scope of subjects of relevant social relations, the status of a preventive anti-corruption body, its tasks and competences as well as mechanisms for corruption prevention, detection and punishment (except for the issues related to the functioning of the specialized anticorruption body with investigatory competences). Basic Principles of a New Corruption Prevention Law Section 1. General provisions Definitions The key terms mentioned in the law are to be defined, specifically:


English language version of the Concept produced within the framework of UNDP “Democratization and human rights” Project with support of the Ministry of Foreign Affairs of Denmark

anti-corruption expert examination; corruption; corruption offence; conflict of interest (perceived, actual and potential), private interest; gift, donation (in the context of restrictions as to providing charity to state and local government bodies and officials); family members, close persons; persons authorized to perform state and local government functions; persons in positions of importance or particular importance; unlawful benefit; other terms. Section 2. National Corruption Prevention Commission A National Corruption Prevention Commission (NCPC) is proposed to be created to ensure institutional support for corruption prevention. Status. In compliance with the Constitution of Ukraine, the NCPC is proposed to be created as a central body of executive power with special status. Its special status shall be ensured by its creation under the law which defines its rights, responsibilities, tasks and competences and guarantees of its independent functioning as well as by a special character of the tasks it is intended to perform. Organizational structure of the NCPC. In order to eliminate any potential risks related to the impact of any personal factors on the decision-making process, the NCPC is proposed to be created as a collective body1, which would consist of five members – a chairperson and 4 ordinary members. The chairperson shall be elected by the members of the NCPC at their meeting. The NCPC shall be holding meetings, with decisions made by majority vote among its members. The NCPC’s functioning as a collective body shall be ensured by its central apparatus and, whenever necessary, by territorial bodies created upon the request of the NCPC by resolution of the Cabinet of Ministers of Ukraine regionally, their jurisdiction covering several oblasts. Interactions with the other state and local government bodies are proposed to be performed through authorized subdivisions (persons) to be created in: 1

Anti-corruption bodies managed collectively have been created, among others, in such countries as Slovenia, the Former Yugoslav Republic of Macedonia, Serbia, South Korea and Hong Kong.


English language version of the Concept produced within the framework of UNDP “Democratization and human rights” Project with support of the Ministry of Foreign Affairs of Denmark

the apparatus (secretariat) ensuring functioning of the officials, collective bodies of state power, the National Bank of Ukraine, the Constitutional Court of Ukraine, the Supreme Court and other high specialized courts as well as the High Qualification Commission of Judges of Ukraine as specified in the Constitution of Ukraine, the central apparatus of a ministry or another central body of executive power, the apparatus of the Supreme Council of the Autonomous Republic of Crimea, oblast councils, Kiev and Sevastopol City Councils, the Council of Ministers of the Autonomous Republic of Crimea, oblast state administrations as well as Kiev and Sevastopol City State Administrations. The NCPC shall be coordinating and providing instructional support to the subdivisions of the state and local government bodies in the field of corruption prevention and counteraction as well as approving the structures, staff sizes and work plans of such subdivisions (persons), competitive appointments and dismissals of their heads as well as their rewarding and bringing to justice. Special procedures for appointments and dismissals of the NCPC members. NCPC members shall be appointed on the basis of an open public competition conducted by a competition commission which shall include, among others, public representatives. Eligible to be a member of the NCPC is any citizen of Ukraine 35 years of age or older who has a higher education degree, speaks the Ukrainian language and is able to perform relevant official duties due to his/her professional and moral qualities, educational attainment, proficiency and state of health. Ineligible to be a member of the NCPC is any person who has been recognized by court as legally incapable or partially incapable; has a criminal record for intended crime unless his/her conviction has been expunged or cancelled in the duly manner prescribed by law; has been brought to justice by court for any crime related to his/her official or professional activities involving public service delivery or crime against justice; has citizenship in another country; has failed special screening and/or was a member of a political party executive or had employment relationship or any other kind of contractual relationship with a political party within one year prior to his/her applying to participate in a competition for this position, regardless of the duration. The term of the NCPC members’ mandate is proposed to be limited to 4 years. One person cannot serve more than two consecutive terms in the same position. An NCPC member can be dismissed from his/her position on the basis of an exhaustive list of reasons indicated in the law, including his/her being elected or appointed to another position with his/her consent, his/her reaching 65 years of age, his/her inability to perform his/her duties due to his/her state of health, coming into effect of a court ruling


English language version of the Concept produced within the framework of UNDP “Democratization and human rights” Project with support of the Ministry of Foreign Affairs of Denmark

recognizing him/her as legally incapable or partially capable, his/her being announced missing or dead, coming into effect of a ‘guilty’ verdict against him/her or a court ruling establishing non-observance of the restrictions as to the plurality of offices or his/her holding his/her office together with other offices or types of activity envisaged by the Law of Ukraine on Principles of Preventing and Counteracting Corruption, his/her renunciation of Ukrainian citizenship or his/her leaving Ukraine for permanent residence in another country, voluntary determination of his/her employment contract and his/her death. Safeguards against unlawful influence on the NCPC members Any statement as to a suspected criminal offence committed by a member of the NCPC can only be made by the Prosecutor General of Ukraine. The members of the NCPC, their close relatives and their property shall enjoy special protection by the state. At the request of a member of the NCPC, the law enforcement bodies shall take all the necessary measures to ensure safety and security of the NCPC member, his/her family members and their property. Any offence against an NCPC member’s life or health, his/her property destruction or damage, threat to kill him/her, commit violence against him/her or damage his/her property and/or any offence against lives or health of persons close to an NCPC member, threat to kill them or damage their property shall entail liability as prescribed by law. A member of the NCPC is entitled to have means of protection provided by the law enforcement bodies. NCPC staff status. The NCPC members’ salaries shall be set equal to those of the judges of the Supreme Court of Ukraine, their official salary rate specified directly in the law. Salaries and social security standards of the NCPC apparatus staff shall be established at a level making it possible to ensure proper guarantees of their activities such as independence and impartiality (e.g. salaries of the NCPC apparatus staff shall be established at a level twice higher than those of their counterparts in the Secretariat of the Cabinet of Ministers of Ukraine). NCPC funding. Amounts of expenditure earmarked for the activities of the NCPC shall be established in a separate line in the State Budget Law. The head of the NCPC is entitled to represent the NCPC’s position as to its funding at the meetings of the Cabinet of Ministers of Ukraine (further CMU), committees or plenary sessions of the Verkhovna Rada of Ukraine (further VRU). Expenditure earmarked for the NCPC shall include (possibly in a separate line) funds to support the activities of civil society institutions in the field of corruption prevention (research, information campaigns, trainings, legislative analysis for corruption risks etc.). NCPC functions. The NCPC shall be performing the following functions:


English language version of the Concept produced within the framework of UNDP “Democratization and human rights� Project with support of the Ministry of Foreign Affairs of Denmark

1) to prepare a draft anti-corruption strategy, a draft national anticorruption programme and other legislative acts to support the formulation and implementation of the national anti-corruption policy; 2) to ensure the implementation of measures envisaged by the anti-corruption strategy and national anticorruption programme, monitor the effectiveness, efficiency and coordination of the activities of the relevant state and local government bodies; 3) to systematically analyze: legislation in order to detect any norms whose implementation is potentially conducive to corruption as well as prepare and participate in the preparation of proposals developing draft normative acts in the field of corruption prevention and counteraction; statistical data, scientific research and sociological surveys in the field of corruption prevention and counteraction as well as information on any measures taken in this field in order to detect factors conducive to corruption and prepare proposals to eliminate these factors; 4) to conduct anti-corruption expert examinations of draft normative acts; 5) to prepare and publish a report on the results of national anti-corruption policy measures; 6) to coordinate and provide instructional support to the subdivisions of the state and local government bodies in the field of corruption detection and prevention; 7) to approve: structures, staff sizes and work plans of subdivisions (persons) of state and local government bodies responsible for corruption detection and prevention; appointments on an open competitive basis and dismissals of the heads of subdivisions (persons) of state and local government bodies responsible for corruption detection and prevention as well as their rewarding and bringing to justice; 8) to monitor the execution of legislative acts in the field of ethical conduct and prevention of conflict of interest in the actions of persons authorized to perform state or local government functions; to establish, according to the law, the rules of ethical conduct of civil servants and local government officials; 9) to cooperate with persons honestly reporting suspected corruption offences or any other violations of this Law (whistleblowers), take measures to ensure their legal


English language version of the Concept produced within the framework of UNDP “Democratization and human rights” Project with support of the Ministry of Foreign Affairs of Denmark

and any other protection and bring any persons guilty of infringing their rights related to such reports to justice; 10) to check, in the manner prescribed by law, the accuracy and completeness of data provided in the property, income, expense and financial liability declarations, including monitoring of the ‘lifestyles’ of persons authorized to perform state or local government functions, as well as store and promulgate such declarations; 11) to provide instructional support to the state and local government bodies in development and implementation of corruption prevention programmes (anticorruption programmes) as well as approve and monitor their implementation in accordance with this Law; 12) to initiate internal investigations and measures to prosecute any persons who have committed corruption offences as well as forward proofs of any such corruption offences to special authorized bodies in the field of corruption counteraction; 13) to ensure maintenance of the uniform state register of property, income, expense and financial liability declarations and the uniform state register of persons brought to justice for corruption offences; 14) to organize training, retraining and further training of the personnel of the state and local government bodies in the field of corruption prevention; 15) to provide explanations, instructional support and advice on applying corruption prevention and counteraction legislation; 16) to engage civil society institutions in the formulation and implementation of the national anti-corruption policy and ensure functioning of the Public Council at the NCPC; 17) to inform the public on any corruption prevention and counteraction measures and conduct activities aiming to build negative public attitudes to corruption; 18) to cooperate with business entities in the formulation and implementation of the anti-corruption policy to prevent corruption in the private sector; 19) to conduct corruption related research; 20) to cooperate with state bodies and non-governmental organizations of foreign countries as well as international organizations in the field of corruption prevention and counteraction and coordinate, within the boundaries of their competence, obligations stipulated in the international treaties signed by Ukraine in this field;


English language version of the Concept produced within the framework of UNDP “Democratization and human rights� Project with support of the Ministry of Foreign Affairs of Denmark

21) to exchange information with the relevant bodies of foreign countries and international organizations. NCPC competences. The NCPC shall have the following competences: 1) to obtain, in the duly manner upon written request, information necessary to perform the tasks assigned to it from state and local government bodies as well as from business entities, regardless of ownership, citizens and their associations; 2) to use relevant databases of state bodies, state-owned (and, particularly, governmental) communication systems, special communication systems and other technical tools; 3) to engage, in the duly manner, researchers and experts, inter alia, on a contractual basis, as well as the staff and officials of state and local government bodies in the execution of specific works and examination of specific issues; 4) to create committees and working groups, organize conferences, workshops and meetings in the field of corruption prevention and counteraction; 5) to develop and approve binding regulations within the boundaries of its competence; 6) to check the implementation of anti-corruption programmes by the state and local government bodies and issue binding orders for the elimination of corruption prevention and counteraction legislation to be followed by the state and local government bodies, their officials and staff; 7) to raise issues as to the dismissal of any officials or other staff working in state and local government bodies who failed to take corruption prevention and counteraction measures prescribed by law; 8) to initiate internal investigations and send materials related to corruption offences to the court or special authorized bodies responsible for corruption prevention; 9) to obtain from persons authorized to perform state or local government functions explanatory notes as to the circumstances that may be evidence of any violations of the ethical conduct rules or conflict of interest and/or adequacy and completeness of data provided in a property, income, expenditure or financial liability declaration; 10) to take legal action to invalidate any regulations, decisions or transactions made as a result of a committed corruption offence or confiscate any property acquired without good legal ground (unjust enrichment).


English language version of the Concept produced within the framework of UNDP “Democratization and human rights” Project with support of the Ministry of Foreign Affairs of Denmark

Specific norms are to be introduced to regulate such mechanisms as the NCPC’s orders and document requests. NCPC’s orders. Whenever it believes there is a reasonable suspicion that a corruption offence has been committed, no corruption prevention action has been taken or any other violation of the provisions of this Law has been made, the NCPC is entitled to address the relevant official with an order to correct the violations or call the person responsible to account. The NCPC shall be informed of the results of consideration of its order within 10 days. Failure to obey the order shall entail administrative liability of the official. Furthermore, if the NCPC reveals any signs of a corruption offence (administrative or disciplinary alike), it shall approve a grounded opinion letter and send it to the relevant body for calling those responsible to account. NCPC’s information and document requests. State bodies, local government bodies, legal entities and individuals are obliged to provide documents and information specified in the NCPC’s request by the deadline fixed by the NCPC and not later than within 10 days (within 72 hours in urgent cases). An information/document request shall specify a legal ground and a purpose for which the information/document is required. A special procedure for obtaining information is to be established for those cases when it might involve the disclosure of a bank secrecy, lawyer’s professional secrecy or any other secret protected by law. Legislation regulating administrative investigations. The draft law is to contain specific rules regulating the functioning of the NCPC. Specifically, a procedure for administrative investigation of any corruption prevention legislation violations is to be established.

Control over the NCPC’s activities. The NCPC shall prepare annual reports on the current corruption situation in the country and send them to the President of Ukraine (further PU), VRU and CMU. The report shall contain, among other issues specified below, a chapter describing the NCPC’s activities and shall be considered at the parliamentary hearings, together with the conclusions and recommendations made by the relevant parliamentary Committee and the NCPC Public Council. The report shall be submitted to the Public Council two weeks before it is promulgated and sent to the aforementioned higher bodies of state power.


English language version of the Concept produced within the framework of UNDP “Democratization and human rights” Project with support of the Ministry of Foreign Affairs of Denmark

The report shall also be published on the official website of the NCPC together with the conclusions of the NCPC Public Council as well as recommendations and conclusions of the parliamentary hearings. Control over expenditure of the state budget funds and property assigned to the NCPC can be exercised by the Chamber of Accounts, who shall periodically conduct a mandatory audit of the NCPC. In order to ensure transparency of and civil control over the NCPC’s activities, the CMU shall create on an open and transparent competitive basis a Public Council of 15 persons at the NCPC. The Public Council shall hear information on the state of implementation of the anti-corruption policy, the NCPC’s activities, the execution of its plans and fulfillment of its tasks, consider reports presented by the NCPC and produce conclusions as to these reports, produce expert examination conclusions as to the draft acts to be issued by the NCPC and elect delegates to the NCPC’s Disciplinary Committee from among its members. Option – a representative of the Public Council shall take part in the NCPC’s meetings in an advisory capacity. In order to avoid any conflict of interest, it is appropriate to specify that representatives of civil society institutions receiving funding from the NCPC for the implementation of anti-corruption activities cannot be eligible for membership of the Public Council. Section 3. Formulation and implementation of the national anti-corruption policy Anti-corruption strategy. The principles of the national anti-corruption policy (anti-corruption strategy) shall be approved by the Verkhonvna Rada of Ukraine as a law. The draft Strategy shall be prepared by the NCPC and submitted to the Parliament by the Government for consideration. The draft Strategy shall be based on the current corruption situation assessment and implementation of the previous strategy. In order to create a methodological framework to assess the spread of corruptive behaviours, corruption perceptions and the degree of trust in anti-corruption and other state bodies, the CMU shall approve a legal act, according to which the NCPC shall organize relevant annual research. The draft Strategy shall be prepared involving the public and approved by the Public Council prior to its submission for consideration by the Government. The implementation of the Strategy shall be monitored and coordinated by the NCPC together with the public by way of exercising control over and providing methodological support to state and local government bodies in the field of


English language version of the Concept produced within the framework of UNDP “Democratization and human rights� Project with support of the Ministry of Foreign Affairs of Denmark

implementation of anti-corruption measures. The NCPC shall be entitled to make proposals to bring any persons responsible for disruption of any activities envisaged by the Strategy to justice. Any changes can be introduced into the Strategy following the results of the annual parliamentary hearings and examination of the annual report on the current corruption situation. If there is a need for making urgent adjustments to the Strategy, the NCPC shall raise the issue with the Government depending on how urgent the problem is. National anticorruption programme. In order to implement the Strategy, the Government shall approve a national anticorruption programme specifying the activities aiming to achieve the goals set in the Strategy, bodies responsible for their implementation, time frames and amounts of funding necessary. Departmental anti-corruption programmes Departmental anti-corruption programmes shall be adopted on the basis of analyses of corruption risks associated with the activities of the relevant bodies in order to ensure the implementation of the anti-corruption strategy and the national anti-corruption target programme. Thus, the programmes shall be approved by: the apparatus (secretariat) ensuring functioning of the officials, collective bodies of state power, the National Bank of Ukraine, the Constitutional Court of Ukraine, the Supreme Court and other high specialized courts as well as the High Qualification Commission of Judges of Ukraine specified in the Constitution of Ukraine, ministries and other central bodies of executive power, state collective bodies, state target funds as well as state- or community-run enterprises and economic partnerships where a state/community share exceeds 50 percent, the average staff size in the reporting (financial) year exceeds fifty persons and gross revenues from sales (of works or services) over the period exceeds UAH 70 million, the Supreme Council of the Autonomous Republic of Crimea, oblast councils, Kiev and Sevastopol City Councils, the Council of Ministers of the Autonomous Republic of Crimea, oblast state administrations as well as Kiev and Sevastopol City State Administrations. Departmental programmes shall envisage, inter alia: principles of departmental corruption prevention and counteraction policies, persons responsible for monitoring of their implementation, evaluation and periodic review;


English language version of the Concept produced within the framework of UNDP “Democratization and human rights� Project with support of the Ministry of Foreign Affairs of Denmark

activities to implement the anti-corruption strategy and the national target anticorruption programme; assessment of corruption risks associated with the activities of a body or an enterprise, corruption risks, their causes and encouraging factors; activities to eliminate corruption risks, implementation, time frames and resources needed;

persons

responsible

for

their

trainings and anti-corruption programme awareness activities; programme monitoring and evaluation procedures. The NCPC shall: endorse departmental anti-corruption programmes, approve Guidelines for corruption risk assessment and anti-corruption programme development, ensure relevant training of persons responsible for their development and implementation. Report on the current corruption situation The NCPC shall prepare an annual report on the current corruption situation, which is to be submitted to the President of Ukraine , Verkhovna Rada of Ukraine and the Cabinet of Ministers of Ukraine as well as published on the official website of the NCPC by 1 April of the year following the reporting year. In order to prepare the NCPC, all the bodies where departmental anti-corruption programmes are to be endorsed shall submit the information required by the NCPC by 1 February. The NCPC is entitled to request information that it needs to prepare a report from any other body of state or local government body, a legal entity of public law. A current corruption report shall contain, inter alia, the following data: information on the state of implementation of the anti-corruption strategy and the national target anti-corruption programme as well as proposed amendments to the anticorruption strategy; an NCPC activity report; information on the activities of special authorized bodies in the field of corruption counteraction, particularly criminal statistics;


English language version of the Concept produced within the framework of UNDP “Democratization and human rights” Project with support of the Ministry of Foreign Affairs of Denmark

findings of the NCPC’s research into the current corruption situation as well as findings of any sociological surveys and analyses conducted by any other state international organizations, institutions and civil society organizations in the field of corruption counteraction; information on information campaigns and cooperation with different social and professional groups in the field of corruption prevention; information on fulfillment of international legal obligations in the field of corruption prevention and counteraction. As already mentioned, the NCPC Public Council shall produce their conclusion as to the report whereas the report itself shall be subject to consideration at annual parliamentary hearings. Section 4. Prevention of conflict of interest and observance of ethical standards of conduct In order to prevent any conflict of interest, the law establishes: 1) restrictions as to holding the office by a person authorized to perform the state or local government functions (further employee) together with any other offices or kinds of activity, participation in the executive boards of any business entities, possessing shares in commercial partnerships etc. as well as a procedure for settling issues in those cases where these restrictions are broken. The NCPC shall be issuing opinions as to the possibility of engaging in particular kinds of authorized activities (teaching, academic research, creative work etc.) by officials holding positions specified in the Law (e.g. members of the Government, heads of other central bodies of executive power, members of the Central Election Committee etc.). 2) regulations, restrictions and prohibitions on receiving gifts, rules of conduct in case of being offered or given gifts contrary to the law; 3) restrictions after leaving office: a one-year restriction as to obtaining work at enterprises, institutions or organizations for those employees who have been exercising control or supervision of, preparing or making decisions as to the activities of these enterprises, institutions or organizations or representing the interests of any person in cases where the other party was a body (bodies) where they worked; 4) rules of ethical conduct of employees, related specifically to the use of information obtained when performing the functions of a representative of the state or local government as well as the use of any entrusted property;


English language version of the Concept produced within the framework of UNDP “Democratization and human rights” Project with support of the Ministry of Foreign Affairs of Denmark

5) obligations related to the prevention of any conflict of interest, reporting any conflict of interest and regulations on settling situations involving any conflict of interest. The principal responsibilities of the staff shall be: to immediately (not later than the next day after the incident) inform their superior (along with informing the subdivision responsible for corruption prevention in this body) or, in the absence of a superior, the NCPC of the presence of a private interest in the pursuance of their duties, take no actions and make no decisions in the presence of the conflict of interest and follow the instructions to prevent or eliminate the conflict of interest. The head of the body is to immediately (within 48 hours) take measures to prevent/eliminate the conflict of interest and inform the employee thereof. If it receives information about a conflict of interest, the NCPC is to explain within 7 days how the employee should act. Among the ways to prevent/eliminate a conflict of interest can be: removal from certain actions or making decisions, transfer of the public servant to a different position (dismissal from the position), taking certain actions or making decisions under external supervision. If the NCPC finds out there might be a potential conflict of interest in an employee’s actions and he/she has not informed of this fact, it addresses the body in charge with an order to eliminate the conflict of interest and/or call the employee to account. If an employee has not followed the NCPC’s order to prevent the conflict of interest and made a decision in the presence of the conflict of interest, the NCPC shall address the body where this employee is working or go to court requesting to call the employee to account. If there is any doubt as to the presence or possibility of a conflict of interest, a public servant or his/her superior can consult the NCPC for advice. 6) consequences of any violation of the conflict of interest related rules or the procedure of bringing to justice. The draft law is also to provide for special procedures to prevent/eliminate any conflict of interest in the activities of persons whose status is specified by the Constitution of Ukraine such as the President of Ukraine, people’s deputies of Ukraine, judges of trial courts of general jurisdiction and the Constitutional Court of Ukraine. Section 5. Property, income, expense and financial liability declarations The said declarations shall be submitted by all persons authorized to perform state and local government functions:


English language version of the Concept produced within the framework of UNDP “Democratization and human rights” Project with support of the Ministry of Foreign Affairs of Denmark

-

when taking office; when in office – annually; when leaving office; within a year after leaving office.

Besides, it is proposed to envisage informing the NCPC of any substantial changes in an employee’s property status such as receiving any money or acquiring any property whose cost exceeds the employee’s three months salary, within ten days of his/her receiving income or making expenditure. A declaration form should be improved. Specifically, a scope of information on the declarant’s private interests (particularly his/her membership of the executive or supervisory boards of any public associations) should be expanded, the rates of his/her declarable expenses should be aligned with his/her salary rate (a monthly salary) etc. Declarations shall be submitted electronically by filling in a form on the NCPC’s official website. The NCPC shall create and maintain an electronic register of such declarations, which is to be publicly available, except for certain categories of personal data. Every employee shall have a personal digital key, which could be linked to the number of his/her bank card/account. It is proposed that during the transitional period (presumably 1 year) the NCPC should also admit declarations in paper and subsequently digitize them. The declarations shall be checked by freely accessing the databases of the central bodies of executive power (Tax Service, Customs, State Road Inspection Service of the Ministry of the Interior, State Registration Service, Ministry of Justice etc). Complete checks shall be performed on the declarations of persons holding positions of importance or particular importance (judges, employees of law enforcement services and high officials from the level of deputy heads of oblast state administrations, heads and deputy heads of subdivisions of ministries and other central bodies of executive power etc upwards) as well as positions associated with high corruption risks such as members of tender committees, the list of such positions to be made by the NCPC. Besides, it is proposed to envisage automated random selection of a certain number of declarations (5 to 10%). If a check conducted by the NCPC reveals that a person owns (has in use) some property whose cost substantially exceeds his/her legitimate income, such property can be confiscated by the court . If it is a constituent element of an offence such as illegal enrichment, the materials shall be submitted to the respective special authorized entity in the field of corruption counteraction.


English language version of the Concept produced within the framework of UNDP “Democratization and human rights” Project with support of the Ministry of Foreign Affairs of Denmark

Section 6. Protection of persons honestly reporting committed corruption offences or other violations of this Law (whistleblowers) A whistleblower is any person honestly reporting that there are reasonable grounds to believe that a corruption offence or any other violation of the corruption prevention law has been committed. A whistleblower is entitled to report an offence to his/her superior or the NCPC. Anonymous reports shall be considered only if the information provided in them concerns a specific person, contains specific facts and can be verified. Whistleblowers are guaranteed anonymity. Information provided by them shall be regarded as confidential and cannot be made publicly available. The NCPC shall check the information provided to it and whenever necessary is entitled to take measures to bring the responsible employee to liability, raise the issue of bringing the responsible employee to liability with the body in charge or submit materials to special authorized corruption counteraction bodies if there is a constituent element of offence in the employee’s actions. If there is any threat to a whistleblower’s or his/her family member’s life or health, the NCPC shall immediately address special authorized bodies in charge of corruption counteraction asking to take measures prescribed by the law on the protection of persons participating in criminal proceedings. The law shall envisage the possibility of rewarding the whistleblowers whose reports have helped to prevent a grave or particularly grave crime or any severe damage to the state, society and/or private rights and/or interests protected by law. The law shall also envisage protection of whistleblowers, measures to be taken to restore their infringed rights and calling employers who have infringed any whistleblowers’ rights to account. A deliberately false report of an offence shall entail liability. The NCPC shall be monitoring the execution of the law and taking measures to periodically analyze and review the national whistleblower protection policy. Section 7. Other corruption prevention and counteraction mechanisms Prohibition on receiving services and property by state and local government bodies. The state and local government bodies shall continue to be prohibited from receiving free of charge any services or property from individuals or legal entities, apart from cases stipulated by laws or international treaties of Ukraine.


English language version of the Concept produced within the framework of UNDP “Democratization and human rights� Project with support of the Ministry of Foreign Affairs of Denmark

Anti-corruption expert examination. The Ministry of Justice shall be conducting anti-corruption expert examination of all draft acts submitted for consideration to the Government as well as departmental acts subject to registration with the Ministry of Justice. The methodology of this examination shall be approved by the Ministry of Justice. The NCPC shall be conducting expert examination of all draft acts to be considered by the Cabinet of Ministers (CMU) at its meetings. For this purpose, the CMU shall be forwarding the draft acts in advance for consideration to the NCPC and a member of the NCPC shall be entitled to participate in the meetings of the Government in an advisory capacity. Anti-corruption expert examination conclusions and the draft acts themselves shall be published on the official website of the NCPC. The NCPC Public Council shall be involved in expert examinations. Anti-corruption expert examinations at the Verkhovna Rada of Ukraine (VRU) shall be performed by the committee in charge of combating corruption. Besides, the NCPC shall be producing expert opinions as to the draft acts considered by the Parliament and shall be entitled to take part in the meetings of the parliamentary committees and plenary meetings. The NCPC shall also periodically review the legislation for any norms conducive to corruption and prepare legislative proposals to remove any such norms. The NCPC is entitled to engage civil society institutions and research institutes in such reviews, particularly on an open competitive basis if given a government order. Special screening. Subject to special screening shall be persons aspiring to hold positions belonging to categories 1, 2, 3 or 4 of civil service or equivalent positions. Subject to special screening shall be information on a person who aspires to hold a position, specifically as regards: 1) any criminal charges brought against him/her, inter alia, for corruption offences as well as his/her previous criminal convictions, whether expunged or cancelled, if any; 2) any administrative actions taken against him/her for corruption offences; 3) accuracy of information provided in his/her property, income, expense and financial liability declaration; 4) his/her having any corporate rights; 5) his/her state of health, educational attainment, academic degree and/or rank and advanced training.


English language version of the Concept produced within the framework of UNDP “Democratization and human rights” Project with support of the Ministry of Foreign Affairs of Denmark

Organization of special screening shall be entrusted to the head of the state or local government body where the person is applying for a position. The сheck shall be performed involving the NCPC, special authorized corruption counteraction bodies and, if necessary, other central bodies of central power. Register of individuals and legal entities who have committed any corruption offences. The law shall provide for a procedure of maintenance and public accessing of a register of individuals and legal entities who have committed any corruption offences. The maintenance of such a register shall be the responsibility of the NCPC. Annulment of unlawful normative acts and transactions. Any normative acts or decisions issued as a result of a committed corruption offence can be annulled by a body or official authorized to issue or annul such acts and/or decisions or recognized as unlawful judicially upon application of an interested individual, association of citizens, legal entity, prosecutor, state or local government body or the NCPC. A transaction made as a result of a corruption offence shall be deemed null and void. Restoration of rights and legitimate interests and compensation of damages and losses suffered by individuals or legal entities as a result of a committed corruption offence. Individuals and legal entities whose rights have been infringed as a result of a committed corruption offence and who have suffered moral or property damage or losses are entitled to have their rights restored and damages and losses recovered in the duly manner prescribed by law. Any damages and/or losses inflicted on an individual or legal entity in consequence of unlawful decisions, actions or lack of action on the part of a subject responsible for taking corruption prevention and counteraction measures shall be recovered from the state budget of Ukraine in the duly manner prescribed by law. The state, the Autonomous Republic of Crimea or the local self-governance body who has recovered damages and/or losses caused by an illegal decision, action or failure to act of a body taking corruption prevention and counteraction measures has a right of recourse against the person who caused this damage and/or losses in the amount of the compensation paid (except for compensation of payments related to labour relations and compensation of moral damages). Liability for violating the law. The law is to indicate only which violations shall entail dismissal from the position held or other disciplinary actions and which of them shall entail administrative liability. Sanctions for committed offences are specified in special acts (Law on Civil Service and Service in Local Self-Governments, Criminal Code, Code of Administrative Offences, Labour Code etc.). Amendments to some laws ensuing from the newly adopted Law on Corruption Prevention: Law on Principles of Preventing and Counteracting Corruption – expires;


English language version of the Concept produced within the framework of UNDP “Democratization and human rights” Project with support of the Ministry of Foreign Affairs of Denmark

Law on Rules of Ethical Behaviour – expires; amendments to the Law on the Status of the People’s Deputy of Ukraine and the Law on Regulations of the Verkhovna Rada of Ukraine – as to resolving conflicts of interest in the activities of people’s deputies of Ukraine; amendments to the Law on Local Self-Government – as to resolving conflicts of interest in the activities of local government bodies; amendments to the Laws on Civil Service, Service in Local Self-Governments and other laws regulating procedures for different types of civil service – as to their harmonization with the Law on Corruption Prevention , particularly regarding liability for violations of requirements specified in its provisions, amendments to the Law on the Judiciary and Status of Judges and the Law on the Constitutional Court of Ukraine – as to resolving conflicts of interest in the activities of judges; amendments to Ukraine’s Code of Administrative Offences related to liability for: - failure to submit property, income, expense and financial liability declarations or providing deliberately false information in the declarations, - taking certain actions or making certain decisions while having a conflict of interest, - violation of rules for receiving gifts, - failure to fulfill the lawful requirements and orders of the NCPC; the Code of Civil Procedure of Ukraine – as to entrusting the employer with the duty of informing about the grounds for dismissal and/or taking disciplinary action against an employee who has voluntarily reported a suspected corruption offence or any other violation of the Law on Corruption Prevention as well as the participation of the NCPC in the proceedings as a third party together with the suitor; to the Labour Code of Ukraine: - as to the obligation to reinstate an unfairly dismissed person who has voluntarily reported a suspected corruption offence or any other violation of the Law on Corruption Prevention or, if this person refuses to be reinstated in the former job, pay compensation of six average monthly salaries;


English language version of the Concept produced within the framework of UNDP “Democratization and human rights” Project with support of the Ministry of Foreign Affairs of Denmark

- as to harmonization with the Law on Corruption Prevention in terms of grounds for bringing to liability for the violation of its requirements; to the Criminal Code of Ukraine: – as to the protection of the NCPC staff from offences (granting them the status equivalent to that of the staff of the law enforcement bodies), - as to the liability for unfair dismissal and/or taking disciplinary action against a person who has voluntarily reported a suspected corruption offence or any other violation of the corruption prevention and counteraction law.


Concept paper prev corr finalized en