Fighting corruption in Ukraine, several counties of the world, and possible steps for creation of anti-corruption court

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Fighting corruption in Ukraine, several counties of the world, and possible steps for creation of anti-corruption court

Theoretic aspects of the problem. Now and then the state makes laws that are meant to act against corruption. A number of such laws were made in 1995 and 2011, and for the latest law 10 additions and commentaries of the Consitution Court were adopted before 27.03.2014. In 2015 the legislative base of counteracting corruption was completely formed. However, despite the adopted legislation, corruption is constantly growing in the country. Sadly, out of 175 countries that are being monitored by the international organizations that estimate corruption levels, Ukraine takes a place close to the last one, being 132^nd.

We have performed the monitoring of the state of counteracting corruption in Ukraine in 2017, which, in our opinion, had moved into political sphere, and the possibility of creation of anti-corruption court, which became part of our investigation (Fig. 1).

The results of investigation of the “World Corruption Barometer” company from Transparency International and Gallup International Association show that there is no country with ideal indicators of counteracting corruption. Denmark, that has the 1^st place in the list, had 3% of population encounter corruption problem in their country in 2015. New Zealand and Norway had 5% each, and in Ukraine, all of 98,6% of population, the shocking data that prove total corruption of the state apparatus, that endangers the very existence of the statehood.

Besides that, the above-mentioned companies had performed internal monitoring of the influence of corruption on the life of Ukrainian citizens in 2015. According to their data, most frequently the citizens give bribes when receiving services in law enforcing authorities (49%) and medical institutions (41%). Besides that, the bribing tendency increases in other spheres, as well. Ukrainians frequently give bribes in educational facilities (33%), land services (25%), registration and permissive services (22%), courts (21%), tax administrations (18%), municipal enterprises (6%).

Besides that, according to the investigation, the most corrupt sphere was found to be the law (66%), followed by law enforcing (64%), state services (56%), health care (54%), Parliament (53%), political parties (45%), educational system (43%), business (36%), army sphere (28%), mass media(22%), religious institutions (21%), public organizations (20%).

The living schemes in the countries that had declared themselves beyond the corruption zone require no comment (Fig. 2).

Is the situation in Ukraine really that bad, and is corruption really “incurable” in the state? It doesn't seem to be like that at all. In early 2015 the formation of legislative field for counteracting corruption began, as well as theoretical and scientific development of definition of corruption [2-8]. Unlike the popular slogan and promises of politicians to “defeat corruption”, this is not the function of anti-corruption reform, because the task seems impossible. The final task of the reform is to prevent corruption from creating risks to the national safety and from blocking stable economical development of Ukraine.

In 2015 a number of specialized anti-corruption organs were created. They are expected to demonstrate the visible results of their work in 2017. We have performed complex analysis of the following anti-corruption organs.

National Anti-Corruption Bureau of Ukraine (NABU) [2] is the first and only one of the new anti-corruption organs which has started working with the assignment of the special anti-corruption prosecutor. It is expected that in months to come the National Agency of Corruption Prevention, State Bureau of Investigations, and Agency of Return of Stolen Assets. Besides the abovementioned organs, in Ukraine there's an active Council of Fighting Against Corruption, which deals with strategic questions and communication with the public and business. Also the Project Office of Anticorruption Problems of the Council of Reforms deals with the questions of communicative strategy. Besides that, recently the Prime Minister suggested to invite an international anticorruption mission to Ukraine, and the experts are discussing the creation of anticorruption courts.

Despite the creation of new anticorruption organs, the main responsibility for the investigation remains upon the prosecutors. The Parliament had, under pressure from the Western countries and the public, passed the law about National Anticorruption Bureau of Ukraine (NABU) in October, 2014. The head of Bureau, Artem Sytnik, was appointed by the President of Ukraine in April, 2015.

Special anticorruption prosecutor's office.

The Specialized Anticorruption Prosecutor's Office, created in September, 2015 [3] within the structure of General Prosecutor's Office, is responsible for watching over the investigations of NABU, support of state prosecution and representing the interests of Ukrainians and Ukraine in the crime cases related to corruption. On 30^th of September, 2015, the General Prosecutor appointed the anticorruption prosecutor - the 30 years old first deputy prosecutor of Crimea, Nazar Kholod- nitsky. Maksim Gryschuk became the first deputy head of Specialized Anticorruption Prosecutor's Office.

The National Agency of Corruption Prevention (NAZK) is just as important an organ in the fight against corruption. The mission of NAZK is checking the veracity of data in the declarations of the officials and the conformity of the data to the way of life of the officials. On finding of any violations in the declarations the data are to be given over to NABU. If the declaraction form and the new register are approved timely, we can expect the first cases of the Agency of Return of Stolen Assets. On 10^th of November, 2015 the Parliament had voted for creation of National Agency of Ukraine for investigating, finding and management of the assets.

Currently the investigators deal with search and return of the assets - from prosecutors to district policemen, who have to find the corruption-related property that is hidden in Ukraine and beyond its borders, and carry the responsibility for its keeping. In presence of the National Agency, all the confiscated and arrested properties will pass through the united state register. The creation of the register is supported by the World Bank and by UN [5]. The employees of the Agency will search for criminal assets not only in Ukraine, but abroad, as well, cooperating with similar structures world-wide. An important prerequisite for the effective work of the Agency is the presence of an approved court decision.

State Bureau of Investigations (SBI) [6].

On 12^th of November, 2015 the Parliament had passed the law for creation of State Bureau of Investigations. The law was to take effect on the day of creation of the State Bureau of Investigations by the Cabinet of Ministers, but not later than 1^st of March, 2016. Currently the Bureau had not been created and is not functioning.

According to the law, the SBI will investigate criminal cases related to the activities of organized criminal groups, and work with the crimes for which the penalty is life imprisonment. Also the Bureau will deal with cases of tortures in law enforcing agencies and military crimes. It will be able to bring judges, prosecutors, ministers, people's deputies and other high-ranking officials to justice, and also investigate the crimes in NABU and anti-corruption prosecutor's office. The maximum amount of employees of the Bureau is set to 1500 persons.

National Council of Anti-corruption policy [7].

Besides the organs that are supposed to directly prevent corruption, punish for it and compensate the losses, Ukraine had also created the Council that is responsible for optimizing anti-corruption strategy and estimate its effectiveness. It is a consulting organ for the President, and the Council includes both representatives of the government and businessmen and members of civil society. Public deputy Mustafa Jemilev was appointed the head of the Council. (The sheme of anti-corruption organs, published by the newspaper “Today”, Tabl. 1).

In our opinion, it is too early to make any preliminary conclusions. After the introduction of above-mentioned laws the work on fighting the corruption had just begun. For example, the National Anti-Corruption Agency in Romania was created in 2003 under influence of the EU, as a main condition of eurointegration. In 2006 the Anti-Corruption Prosecutor was appointed, after entering the EU in 2007 Romania was considered the most corrupt country of EU. In 2011 EU had developed the anti-corruption strategy for the country.

Changes were implemented in the legislation, and in 2013 more than a thousand of criminal cases were sent to court, more than 150 millions of Euro confiscated, and among others the brother of acting president of the country, former prime minister, and 6 deputies of governing parties were condemned. In 2016 120 prosecutors of the Agency were working on more than 6 thousands of anti-corruption cases. The anti-corruption legislation of Romania is stricter. Anti-corruption organs have the right to use “preventive detention” of suspects up to 180 days (in Ukraine it is only legal for 3 days after announcing the suspicion of the crime) [10].

The neighboring Moldova had entered EU two years ago. The anti-corruption legislation of Moldova was accepted in 2013, but only this year the anti-corruption organs of Moldova began detaining the authorities under suspicion of corrupt actions. The Minister of Transport, Yuriy Kirinchuk, was detained. On 27^th of April the head of road administration, Vyacheslav Teleman, was detained. A week before the mayor of Chisinau, Nistor Grozav, and head of department of city transport Igor Gamretchi were placed under house arrest on suspicion of corrupt actions. On 3^rd of May the deputy minister of economy, Valeriy Truboli, was placed under house arrest. Besides that, in March the Minister of Agriculture of Moldova, Eduard Grama, was detained [11].

Currently the Italian police is performing a specialized operation against the mafia in the southern part of the country, as a result of which 116 members of mafia structures were detained. Members of 24 mafia clans, including the “Ndrangheta” and “Cosa Nostra”, were arrested. Among them were the mayors of two cities - mayor of Avetrani (Apulia province) Antonio Mino and mayor of Erchie (Salerno province) Giuseppe Margheriti. Besides that, 54 more people who are suspected to be connected to the group of one of “Cosa Nostra” leaders, Benedetto Santapaoli, were detained in Catania province.

As we have noted before, the leaders of law enforcing agencies especially insisted on the legislative definition of corruption, since they considered the absence of such a definition to be the main legislative obstacle for effective counteracting the corruption, which was represented in the 1^st article of Law of Ukraine “On fighting corruption” [8].

We have to agree with the scientists and practical workers who view the definition of corruption as represented in the Law of Ukraine “On fighting corruption” to be not quite successful (M.I. Melnik, M.I. Khav- ronyuk, S.A. Shalgunova) [9].

Various approaches and variants of definition were suggested. It was even proposed (and, we must admit, not without reason) to reject any general definition. There was another proposal, to view corruption as a crime and introduce a special article in the criminal code concerning the responsibility for corruption.

Scientists note that the normative-legal definition of corruption and corruption-related offenses requires the introducing of several complex international programs (Code of conduct of the official authorities of law enforcement, accepted by the General Assembly of UN on 17.09.1979.

Practical ways of fighting corruption, prepared by the secretaries of VIII Congress of UN in May, 1990; UN Convention against corruption from 31.10.2003; UN Convention against transnational organized crime, accepted by the Resolution 55-25 of General Assembly from 15.11.2000; Resolution (97) 24 of the Committee of Ministers of Europe Council “On twenty main principles of fighting corruption», accepted on 06.11.1997 on session 101; Crime Convention of Europe Council on fighting corruption from 27.01.1999; Convention of Europe Council on corruption in context of civil law from 4.11.1999 and others).

However, despite the accepted law acts, corruption keeps growing in the country. This is proved by the results of investigation of the company “Barometer of World Corruption” from Transparency International and Gallup International Association in 2016-2017 that we have mentioned above [12].

Besides that, the investigation of corruption-related problems in Ukraine in 2010-2014 in various spheres of society provided some interesting results: 83% of respondents mentioned that people who rule the country act in their own interests; 54% of respondents considered corruption to be the main factor of distrust towards their own institutions; 84% of respondents considered that the government would be trusted some effort into fighting corruption; 4% of population consider that the government can affect the corruption processes.

In general, 54% of population thinks that corruption in the country cannot be justified, and the fact that 46% of population refused to pay the bribe when demanded shows that right now is the time when people are seriously motivated to fight corruption. Georgia may serve an example, where in the beginning of fight against corruption in 2014 92% of population didn't mind this occurrence, and in 2013 only 4% thought this way [12].

In early 2016 TI published a report, according to which Ukraine took 131^st place in the world rating of perception of corruption of 176 positions, placing Ukraine next to Iran, Cameroon, Nepal, Nicaragua and Paraguay. The three leaders in the world anticorruption rating of CPI in 2015 were Denmark, Finland and Sweden with 91, 90 and 89 points respectively. The most corrupt countries in the world back then were North Corea and Somali with 8 points. USA took 72^nd place.

In the World Corruption Perception Index (CPI) in 2016 Ukraine took 131^st place of 176 counties, sharing this position with 29 points with Kazakhstan, Russia, Nepal and Iran, according to the annual report of Transparency International Ukraine, published on 25^th of January, 2017. It was noted that the most points were brought to Ukraine by the investigation of World Justice Project Rule of Law Index, which is considered by the CPI. “The indicator of our country has grown by +10 points compared to previous years. This is caused by decreased indicator of abusing power in government organs (decreased by 14%), by the police and army (decreased by 6%), but the situation with the courts state the same as it was during the times of Yanukovych regime. The same problem is showed by the investigation of World Competitiveness Yearbook, which gave Ukraine +3 points this year”, the report says.

The investigations of Freedom House Nations in Transit gave Ukraine +4 points. The experts considered the most important changes the accountability of state purchases thanks to ProZorro system, state financing of the parties, first investigations of NABU, participation of the public in anti-corruption reforms. The greatest challenges, according to the investigation, were the weak institutions that must guarantee the rule of law, extreme overregulation of the economy and concentration of power in the hands of oligarchic clans.

At the same time, Ukraine received negative marks from investigations of World Economic Forum Executive Opinion Survey (-1 point) and Economist Intelligence Unit Country Risk Ratings (-2 points). “Business encountered significant corruption in distribution of state money, and the judiciary was proved to be unable to prevent it. Really, because of the work of ProZorro and Dozorro systems cases of violations in purchases became more obvious for business and public compared to paper tenders. Active exposure of such tenders using Dozorro can decrease corruption in purchases significantly. And much more has to be done to solve the problem of impunity in courts”, the expert state (Fig. 3).

In our opinion, the following may be considered the general causes of corruption in Ukraine:

absence of independent and effective judiciary (possible creation of anti-corruption courts); 2) laws that can be interpreted in different ways, but simple legislative acts minimize the influence of officials; 3) ignorance and misunderstanding of the legislature by the population, which allows the officials to abuse their power; 4)nepotism and political patronage; 5) absence of complex anti-corruption legislation; 6) lack of political will of the government towards the fight against corruption. But who and in what way must fight corruption?

Today in 77% of cases the citizens think that the President must fight corruption, and 18% consider it to be the duty of every citizen. 74% do not want to inform the government organs about the corruption of the officials, 24% are afraid of the consequences of such act, 63% consider that nothing will change in the country if they act. Vice versa, in several European countries, like Denmark, Norway, Germany, Great Britain, Czech Republic and others, 92% of citizens consider their duty to inform the government about corruption [12]. Poland may be considered an interesting exam - there an “anti-corruption card” is implemented, which explains the anti-corruption legislation and contains information about how one should behave in case of encountering the facts of corruption activity. So we should speak of beginning certain processes of “mental revolution” in Ukrainian citizens.

Simultaneously with the work of public, as a form of civic control, the country desperately needs to introduce a series of system reforms, among which these could be named the primary ones: 1) developing a detailed plan of realization of the national anti-corruption strategy; 2) restoration of the trust of citizens to all the branches of government and judiciary by the way of lustration; 3) accepting the legislation on prevention of interests and clarity of income and outcome of officials; 4) creating an independent collegiate organ with participation of the public to control the abidance of this legislation; 5) declassify the information on the actions of all the government organs and their decisions; 6) make the state purchases legislation as transparent as possible (250 billion of hryvnas are provided for state purchases, so the data as to what, from whom, and at what cost is bought should be open).

A special problem in the sphere of counteracting corruption is the human resources potential, picking the specialists who will perform the proper governing functions. To pick and appoint these officials the following principles must be used 1) publication of tax and property declarations, checked by a special organ; 2) detailed reglamentation of the officials' actions and minimizing all bureaucratic procedures; 3) open accounting and planning for all government institutions; 4) implementing an electronic system of workflow with minimal interference from the officials (for example, electronic registration of enterprises); 5) creation of single open register of corruptionists; 6) creation of a strict code of conduct of government officials (for example, in Poland in 2013 the minister of transport could not explain how he could afford to buy a watch worth 2,5 thousand dollars and was fired and imprisoned for two years for corruption. In Germany the president of the country was spending his vacation in a hotel, paid for by his school friend, and printed a book of his own research with the help of commercial structures, and after checking and publication of these facts he was forced to retire and is now facing charges for corruption).

And finally, creation of an organ that will fight corruption, which is the national bureau of anti-corruption investigation of Ukraine. We think that the principles of formation of such a structure are very important, and they should be the following:

1) independence of the whole structure from political influence;

2)accountability and regular information of the citizens of the activities of the agency;

3) high professionalism of the employees, their picking and training;

4) guarantees of sufficient payment for their work by the state;

5) financial and material provision for the activities of the whole structure.

In conclusion we should notice that lack of immediate intervention of the state into counteracting corruption may lead to certain risks, which may include the following: 1) the greatest risk is loss of state, and it is not exaggerating. If the influence of corruption on the key processes of the state is decisive, if corruption ways of solving the state affairs become dominant, the state is doomed; 2) corruption may be the cause of retirement of both specific officials and whole governments. World history provides many examples where simple publication of the facts of corruption or the beginning of their official investigation made possible what neither the nation-wide elections, nor decisions of parliaments or heads of states could. And this may lead to serious changes in internal and external policies of the state.

In the external sphere corruption may result in: 1) loss of political and economic positions on the international arena; 2) worsening of the image of the state;

1) impossibility to enter the authoritative and prestigious international organizations or being discharged from them; 4) international isolation and use of international sanctions; 5) decrease or even complete stop of external investments. So basically, a country with high level of corruption “rolls over” to the roadside of world development. For years the influencial international organizations showed Ukraine just the problem of corruption as one of the main obstacles for investments, integration into international structures.

At the same time the consequences of corruption in the country are just as destructive and dangerous, and we'll just briefly name them and the spheres they can affect.

Social sphere - increased social inequality of the citizens, increased social stress. Corruption is one of the main factors of division of society into, so to speak, official and unofficial, which leads to existence of two social subsystems at the same time - one of them based on law and moral statements, the other - on using lawless methods. In this context corruption may be named the shadow of official (legitimate) government, and the part of government affected by corruption - the shadow government. From this point of view the situation in Ukraine is rather dangerous. Back in 1998 even the parliament acknowledged that criminalization of all the spheres of economic and political life and in the higher echelons of power is a danger to the future of Ukraine.

Political effects of corruption decrease the legitimacy of political powers, break the principles of its formation and functioning, separates the government from the people, and makes the state government dependent on private and corporative interests, including the interests of corrupt groups and clans.

Economic effects of corruption include the breakdown of economical system of the country, which manifests in decrease of internal and external investments; development of unfair competition, monopolization of economy; impaired development of market relations; criminalization and formation of shadow economy, etc.

Moral and psychological effects of corruption manifest in demoralization of society, devalvation of moral values, destruction of spiritual and moral principles. Corruption creates a sensation of helplessness before the state, its institutions and officials in the psychology of citizens.

The legal consequences of corruption are serious, as well. They include violation of the law principles of functioning of the state and its institutions (rule of the law, legality, and inevitability of liability), severe limitation of constitutional rights and freedoms of the person and citizen, spreading of legal nihilism in the country [13].

As to the discussion about creation of an anti-corruption court as a separate branch of court (VAKSU), or creation of a judicial chamber in the supreme court for criminal cases, the latter one, in our opinion, is the most productive. The judges of this court are appointed only by an open contest and consider only the cases given by NABU. For the Supreme anti-corruption court a new law that deals with the courts and status of judges must be developed, after which the court should be formed in 12 months. The exact terms of the reform are unknown so far.

The critical consideration of the idea of specialized anti-corruption court is based on the following: first, there is no separate procedural law for anti-corruption jurisdiction, therefore the court is not exactly specialized; second, the presence of just two instances violates the right of appellation and cassation appeal of the court decision, which is against current CCP; third, the small amount of NABU cases does not require the creation of a separate court.

Finally, the anti-corruption courts are present in Europe now, in Slovakia, Bulgaria and Serbia, where their creation is now considered to be a mistake, since they are currently out of business.

The above-mentioned problems are of purely scientific character and require additional consideration.

References

corruption scientific crime

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