Under the program of cooperation between OSCE and Ukraine’s Prosecutor General’s Office, the first of five international workshop seminars under the general rubric of Anticorruption Investigations and Strategy to Prevent Corruption was held in the Crimea. It was opened by General Prosecutor Mykhailo Potebenko and OSCE project coordinator Cordule Wohlmuter. The anticorruption program consists of three projects: the analysis and generalization of international experience in combating corruption; dissemination of this experience among the Ukrainian public prosecutor’s offices, and creation of an anticorruption database. OSCE experts — Volodymyr Sulzhynsky, US Embassy legal consultant; Algimantas Klunka, chief prosecutor of the organized crime and corruption department, General Prosecutor’s Office of the Lithuanian Republic; Vidmantas Bruzgis, Deputy Director of the Special Investigation Service of Lithuania — and officials from central, regional, and sector divisions of the General Prosecutor’s Office. The seminar analyzed practical measures to prevent corruption, the legal framework, and proposed changes there, relying on international experience and legislation. What did the scholars and international experts conclude?
What is to be done to change the world public view of Ukraine as one of the most corrupt countries? Ukraine’s Prosecutor General noted, “The reason for this attitude is that the Prosecutor’s Office, Ministry of Internal Affairs, and SBU Security Service of Ukraine weakened their efforts at one time; the most resonant corruption cases date back 5-7 years. We are now stepping up this effort and checking into cases from that period. Yes, there is corruption today, but it is no more rampant than elsewhere, nor is it gaining in scope; on the contrary, our effort should be directed at preventing corruption. The main barrier must consist in lifting the immunity of all cadre categories; under the Constitution, we all have equal rights, so we must assume equal responsibility.” Mr. Potebenko declared that the reason for holding the OSCE seminar in Ukraine, not elsewhere, was not the level of corruption, but Ukraine’s experience in combating it, which experience has supposedly been acknowledged by a number of international experts.
Throughout 2000, law enforcement authorities detected 6,160 acts of corruption, which is perhaps the tip of the iceberg, illustrating the law enforcers’ activity rather than the scope of the phenomenon. Starting a dialogue between experts and practicing prosecutors, the Prosecutor General pointed out that the ratio of corruption cases being handled by prosecutor’s offices is some 40%. However, the ongoing struggle, in his words, is spearheaded against lower grade public servants (e.g., Grade 5-7) and deputies of village councils (93-98% of the catch) in the first place. Second, 62% of such cases were closed by courts (in some districts and oblasts, the closure ratio reaches 75-84%). Third, [court] rulings relieving corrupt officials of their posts have been carried out by a mere 7.5% (60 out of 797); those levying fines in less than half the cases, one-fifth in some regions (21% in the Crimea; 17.2% in Sevastopol). Fourth, venality appears to be declining, dropping by 7.2% since 1997; Internal Affairs Ministry statistics show a twofold decline over the past year. Experts believe that the Ukrainian economy’s moving into the shadow is the key factor of the corruption onslaught (currently, the shadow sector registers above 50% of GDP).
Referring to other factors causing corruption to spread and weakening the struggle against it, experts note that its current scope makes even the stick method ineffective (because corruption is getting smarter by the day) and the carrot one (because anything a bureaucrat earns officially is easily reduced to nil by a bribe). Larysa Khruslova, instructor at the Institute for Advanced Prosecutor and Investigator Training under the Prosecutor General’s Office, is confident that preventive efforts will be most effective, aimed at eliminating the conditions favoring corruption and developing an adequate legal framework. Her analysis offers convincing evidence that “against the background of society being gravely afflicted with this phenomenon, with the enactment of a new criminal code and other elements of law, implementing the anticorruption norms of international law in the nation’s legislation, the discrepancy between the law, On the Struggle against Corruption, and realities is increasingly obvious; the said law has actually become... a factor slowing the struggle with this evil.”
Scholars addressing the seminar were of the opinion that this law narrows the very notion of corruption and makes it impossible to qualify giving bribes or acting as a go-betweens in giving and taking bribes as acts of corruption and envisions relatively mild punishments for extortion. The law further imposes on the public prosecutor’s offices struggle against corruption, a function alien to them and absent in the Constitution and law. On the Public Prosecutor’s Office. It bars the lower chains in the Internal Affairs Ministry command from drawing up statements on managerial responsibility, does not distinguish between criminal prosecution and administrative punishment, introducing the notion of misdemeanors (something totally illegitimate, considering the current scope of corruption), thus practically relieving the wrongdoers of liability. Practically all participating in the seminar agreed that the law of Ukraine On the Struggle against Corruption is all but ineffective and that this law as well as the one on public service, and others have to be revised or restated, in keeping with international conventions. It further transpired that the entire Ukrainian legislation does not contain the notion of anticorruption investigation. Larysa Khruslova believes, “We still do not have a wholesome national strategy to combat corruption. Individual documents, the National Program, and the Concept of Struggle against Corruption, adopted under presidential edicts, largely remain on paper.”
Mykola Kamlyk, deputy head of the Interministerial Research Center against Corruption and Organized Crime, believes that increasing the effectiveness of this struggle requires solutions to a whole series of political, economic, legal, and institutional problems, including better political and economic stability, working out an effective mechanism to counteract uncontrollable political conflicts and the criminalization of politics, raising confidence in the existing political system, law enforcement authorities, working out a program to drag the economy out of the shadows. The expert believes that a mechanism must be developed immediately to ban the attachment of all those off-budget funds to executive, law enforcement, and judicial authorities, and to bar them from all material aid from business entities; that parliament must step up its work to prepare and pass the bills on credit, prevention of crimes, prevention of the legalization of money and property obtained contrary to the law, on the struggle against organized crime, etc.; that is, the norms of international law must be fully implemented in Ukrainian legislation. Even though corruption cannot be totally overcome, ever, Mr. Kamlyk stresses, it can be restrained, but this cannot be accomplished as a one-time limited campaign; there must be a series of coordinated continuous measures by the state and society.
Consider just one example showing that not all bodies of authority in Ukraine are interested in combating corruption, hence a remarkable legislative dissonance and uncoordinated effort. Yuri Lavreniuk, head of the GPO’s legal oversight department, told the seminar that, after SBU made statements attesting acts of corruption in the registration of businesses in January 2000, Verkhovna Rada promptly (on February 22) introduced changes in Article 1 of the law On Entrepreneurship, such that setting up a business is not qualified as entrepreneurship. However, on that particular occasion the lawmakers were in such a hurry as to overlook Article 8 of the law, reading that a business entity becomes one as soon as it is officially registered, and the founder cannot but be involved in the registration procedures. The discrepancy was further aggravated by the plenum of the Supreme Court with its ruling of March 3, 2000, recommending that the courts abide by Article 8 of the law when adjudicating acts of corruption.
Needless to say, the OSCE had its reasons for busying itself with the anticorruption strategy in Ukraine; both the Ukrainian political leadership and scientists admit its high level. President Kuchma stressed its negative impact on political, economic, and social problems; that bureaucratic corruption and arbitrariness are the greatest obstacle to social progress. The OSCE-PGO cooperation agreement was reached during a meeting with OSCE Coordinator Peter Burkhart. Among the important measures under the program is the promulgation, by OSCE workers among Ukrainian lawyers, of the CE conventions on corruption in the context of criminal (January 2000) and civil law (November 1999), the US Convention against corruption (March 29, 1996), and sharing US experience in using clandestine methods when investigating acts of corruption (OSCE is disseminating copies of a summary in Ukraine).
Naturally, setting up special units to combat top-level corruption within the Internal Affairs Ministry (as officially announced last Tuesday) will step up the struggle against this plague. Prosecutor General Mykhailo Potebenko declared, however, that the effectiveness of the anticorruption campaign is determined not by institutional diversity. He is sure we have enough institutions and laws, so that a bureaucrat can receive several years for accepting a box of chocolates. This is formally correct, but actually humiliating, he said, adding that Ukraine lacks activity and professionalism precisely within the structures designated to combat corruption. Perhaps, we should start there, relying on international experience, effective legislation, and diversified efforts on the part of the state and society. Otherwise we will continue to simply mark time, international seminar participants concluded.
