On Aug. 29, President Volodymyr Zelensky submitted to the Verkhovna Rada, Ukraine’s parliament, a number of draft laws. They are aimed at closing anti-corruption loopholes and fixing previous mistakes. The bills improve criminal code procedures and empower the National Anti-Corruption Bureau, fix the jurisdiction of the High Anticorruption Court, introduce civil forfeiture and criminalize illicit enrichment, relaunch the National Agency for Corruption Prevention and judicial self-governance bodies, and kick off a long-awaited cleansing of the prosecutor’s office. Most of these initiatives correspond with Ukrainian civil society organizations’ agenda for justice.
Restoring punishment for illicit enrichment
The bill aims to return criminal punishment for illicit enrichment, which was abolished by the Constitutional Court of Ukraine in February 2019, and introduce civil forfeiture.
The proposed version takes the court’s stance into account and does not violate the presumption of innocence: there must be sufficient evidence by the plaintiff not refuted by the defendant.
It foresees that illegal acquisition of assets that exceed the official’s legal income by over Hr 14.4 million (approximately $550,000) is considered a crime, which is to be sentenced to 5-10 years of imprisonment.
If the difference varies between Hr 1 million and Hr 14.4 million ($38,000 and $550,000), a court will seize the assets in a civil trial. It will be possible to apply it retroactively if the assets were acquired by an official (or a third person upon official’s instruction or on his money) within a four-year period before the day of law enactment and were owned when the law came into force.
Assets may include money and other property, property rights, intangible assets, including cryptocurrencies, amount of reduced financial liabilities, works or services provided to a person authorized to perform the functions of state or local government.
The National Anti-Corruption Bureau of Ukraine, or NABU, and the Special Anti-Corruption Prosecutor’s Office, or SAPO, will be responsible for the discovery of assets of high-profile officials. The bill empowers anti-corruption prosecutors to bring the confiscation lawsuits to the High Anticorruption Court.
Rebooting National Agency for Corruption Prevention
Zelensky offers to relaunch the infamous National Agency for Corruption Prevention. The body was established in 2015 and was Ukraine’s commitment to the European Union within the visa liberalization action plan. However, the agency fell under political control and lost its independence. Among its most infamous failures was the sabotage of e-declarations.
The agency will cease its collective five commissioners’ irresponsibility and will be headed by one chief and three deputies. The Cabinet of Ministers will appoint a new head of the agency based on the results of an open competition with the participation of foreign experts in the selection panel. They will be nominated by international organizations, similarly to the High Anti-Corruption Court.
The draft law also aims to provide the agency with access to all public registers and databases and oblige it to grant NABU automatic access to the register of declarations as well.
The oversight over the agency will be strengthened: it must undergo an independent audit of its activities biannually. The agency will finally form an internal control unit.
The authorized anti-corruption units will be formed in the different public institutions and will be responsible for identifying corruption, assessing risks, and controlling the filing of assets declarations.
The Law on Corruption Prevention will extend to officials of the Presidential Office appointed by the president.
The draft law also specifies a few regulations on assets declaration, in particular, the requirement to mention banks and financial institutions abroad where an official has opened accounts and storage vaults for valuables. Also, it will be necessary to submit notices of significant changes not only in the case of income exceeding around 96,000 UAH (approx. $3,800) but also regarding expenditures of a declarant and their family members.
Definitions of family members and close individuals are clarified. For the purposes of declaring, family members are defined as those living together 183 days a year or on the last day of the year.
Improving criminal procedure
The adoption of the so-called “Lozovyi’s amendments” in late 2017 was a black day for Ukraine’s criminal justice procedures. The terms of investigation were shrunk to unrealistically short 12-18 months. Such a limitation complicated time-consuming cases, especially those requiring the collection of evidence from foreign law enforcement. In addition, the authority to extend the terms of investigation was shifted from prosecutors to investigative judges – thus making the queues in the overwhelmed courts even longer. In addition, the illogical state monopoly on forensics examinations for criminal cases was introduced. Zelensky’s amendments are aimed at fixing all these drawbacks.
The bill will also lift restrictions on investigative actions against members of parliament. This is a temporary move before lawmakers are stripped of their parliamentary immunity. Now, even to wiretap an MP, the prosecutor’s office has to request the Rada’s consent, which makes investigative action obviously senseless. Thus, for example, a subject of the so-called “amber case,” MP Boryslav Rozenblat, was caught on tape by NABU while they were wiretapping his assistant upon court’s sanction. Rozenblat later achieved the ruling of the dubious Kyiv District Administrative Court that the evidence received against him was not valid since the Rada had not blessed the wiretapping.
The draft law will allow investigative judges not to appoint financial bail for suspects of serious and particularly serious corruption crimes. Now they are obliged to do so, and high-profile suspects are often let free under a bail few times lower than the estimated proceeds of corruption.
Another novelty will regard considering the merits of the cases. A prosecutor will be obliged to read an abridged version of an indictment and this will put an end to Nasirov-style trials, named after former State Fiscal Service head Roman Nasirov, in which almost two years have been wasted for listening to the 774-page text.
With regards to NABU, the draft law will grant it the independent wiretapping powers as required by the International Monetary Fund and define the secret recruitment procedures for NABU covert agents. Ex-Prosecutor General Yuriy Lutsenko once accused NABU of breaching the open competition while hiring intelligence-gathering officers.
Cleansing the prosecutor’s office
With the appointment of the new Prosecutor General Ruslan Ryaboshapka, Ukraine gets a new chance for a comprehensive reform of its tainted prosecutor’s office.
The draft laws offers to downsize the General Prosecutor’s Office’s staff to 10,000 people from the current 14,000. All prosecutors wishing to stay will need to pass an evaluation, carried out by the special panel formed by the prosecutor general. The panel will check whether the prosecutors meet the criteria of professional, personal and social competence; professional ethics; and integrity. This panel will also take over from the Qualification and Disciplinary Commission of Prosecutors the authority to hold competitions to prosecutor’s offices, while the Qualification Commission will keep disciplinary cases.
In addition, the draft law lays the foundations for the electronic workflow to replace the paperwork.
New judges for judges
Zelensky plans to restart the judicial reform by rebooting judicial self-governance bodies. The draft law offers a complete relaunch of the High Qualification Commission of Judges by the selection panel with the participation of international experts. They will be picked from the pool of 12 foreign experts, who were nominated by the international organizations in 2018 for the Public Council of International Experts within the process of High Anticorruption Court establishment. In this selection panel, they will have a deciding vote.
The competition will be open to lawyers with 15 years’ professional experience and an impeccable reputation.
The new Qualification Commission will review the judges of the Supreme Court and recommend those applicants that meet the criteria of integrity for the re-appointment.
In addition, the bill proposes to establish the Ethics Commission to oversee the integrity of the members of the Qualification Commission and the High Council of Justice. The Ethics Commission will include three members of the High Council of Justice and three international experts. If the Ethics Commission finds that a member has violated the criteria of integrity and professional ethics, they recommend the High Council of Justice to dismiss that person. The final decision to dismiss is made by the Council by a majority of votes.
However, the role of international partners in the Ethics Commission should be strengthened, based on the experience of the High Anticorruption Court. The issue is that to get the Ethics Commission to decide to dismiss somebody at least one High Council of Justice member would need to vote in favor (basically, vote against his peer), which might be problematic. On the next stage, the High Council of Justice could easily overturn as Ethics Commission’s decisions are not binding.
The solution is the following:
-> the Ethics Commission should compose of four foreign experts + two High Council of Justice members to ensure they cannot block dismissals;
-> it is important to ensure the Ethics Commission’s decisions are overruled not by a simple majority of the High Council of Justice, but by the two-thirds of joint votes of the High Council of Justice and foreign experts, with at least two foreign experts voting in favor.
In general, this is the first package of the legislation, which is aimed at fixing the most pressing issues. In order to sustain the reforms, next steps should be made without further delays for the full relaunch of the High Council of Justice, streamlining the work of the Security Service of Ukraine by cutting its untypical powers, creating the Bureau of Financial Investigations and handing it all economic investigations etc. Quite a comprehensive home task.
Olena Halushka is a member of the board at the Anti-Corruption Action Center and head of international relations. Olena Scherban is a member of the board at the Anti-Corruption Action Center and head of the legal department.
